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Clothing blackmail in legality

Sunanda K. Datta-Ray

THOUGH no notice will be taken of Mr Slobodan Milosevic's refusal to recognise the jurisdiction of the war crimes tribunal at The Hague, his arrest and trial raise important and disquieting questions of legal and political significance.

To take the second first, this could be the thin end of the wedge for the disintegration of what remains of the Yugoslav federation, whose formation is wrongly credited to the late Marshal Josip Tito. The victorious powers created Yugoslavia from the spo ils of the Austro-Hungarian and Ottoman empires at the end of the First World War, calculating that Serbia's Karageorgevitch monarchy would hold together the union of Serbia, Montenegro, Bosnia, Croatia and Slovenia, as well as Dalmatia and Voyvodina.

It was an understandable expectation at a time when ethnic nationalism did not ride high. Now, Slovenes, Bosnians and Croatians have gone their separate ways (Slovenes peaceably, Bosnians and Croatians by shedding blood), and the Milosevic affair may tur n out to be the last nail in the coffin of the uneasy Serb-Montenegrin federation.

The Yugoslavia President, Mr Vojislav Kostunica, says -- though this might be tactical posturing seeing that he is a Serb and defeated Mr Milosevic -- that the Serbian Prime Minister, Mr Zoran Djindjic, staged a coup behind his back. The Yugoslavia Prime Minister, Mr Ziran Zizic, a Montenegrin, quit in protest. So did his Montenegrin Socialist People's Party and all other Montenegrins in Belgrade's ruling 18-party coalition.

Perhaps the separation of Serbia and Montenegro is something that was waiting to happen. Even without Mr Djindjic's fait accompli, Montenegro might have found some other reason. It joined Yugoslavia three years after the others and, retaining memories of its own existence as a sovereign kingdom, is already independent in all but name. One more republic will make little difference to the Balkan patchwork.

The legal implications of Mr Milosevic's capture and extradition matter more globally, demonstrating the subordination of domestic judicial and political processes to international force majeure. The proponents of both the Yugoslav Cabinet's initial decr ee bypassing the federal government and parliament (and also the president, according to Mr Kostunica), and of the arrest, which flouted a Serb constitutional court's stay order, offered only a pragmatic defence.

Yugoslavia could not afford to be isolated, they argued. It needed at least $1.2 billion aid (at the time of writing the Brussels meeting promised a handsome $1.8 billion) and foreign private investment. It expects a large part of Yugoslavia's $12-billio n foreign debt to be cancelled. Only the US and European Union could provide funding and integrate Yugoslavia in the Western world. Belgrade would have to pay the price -- Mr Milosevic's head.

None of this is to condone the crimes of which the former president is accused. As of now, the charges relate only to mass murders in Kosovo. But the massacres of Bosnians and Croats and genocide, in general, are likely to be added. Mr Milosevic might al so be charged with theft on a grand scale. About $4 billion was spirited out of Yugoslavia between 1992, when the civil war started, and 1994, when sanctions were imposed. A substantial quantity of gold was also sent abroad. Much of this looted wealth is thought to have gone to Cyprus to start with, but may have been moved since to China, Chile, Germany, Greece, Britain, Lebanon and Switzerland.

Crimes of this order must be punished but justice sets as much store on the means as the ends. Concern centres not on the conduct of the tribunal but on how it might be manipulated. All war crimes trials are victors' trials, as India's Radha Benode Pal s aid in his dissenting verdict at the Tokyo trial at the end of Second World War. He paid a price for his courage, for when a vacancy occurred on the Bench of the International Court of Justice, the Americans supported Zafrullah Khan, who had taken Pakist an into the South-East Asian Treaty Organisation, against Pal.

If the dominant powers can punish a courageous jurist and twist a vulnerable government's arm, they can do so elsewhere too. Of course, this always happens in global realpolitik; but the Milosevic case might help to establish a precedent that clothes bla ckmail in legality.