Serb authorities are scrambling to respond to the Yugoslavian Constitutional Court's freeze on Slobodan Milosevic's extradition. Despite the delay, he will likely stand before the International Criminal Tribunal for the former Yugoslavia, on charges of war crimes. More interesting is what Milosevic will not be charged with, and the impact on other foreign leaders and military officers around the world.
In the two years since the Kosovo conflict, there has been little evidence produced to prove that the former president did, in fact, commit the genocide that NATO claimed justified the war. He will now be charged only with war crimes. Ironically, the precedent-setting reduction in charges would make it easy for international courts to try a variety of foreign leaders and military officers, including Americans.
The Kosovo indictment includes persecution and seven instances of murder, totaling 340 victims. These murders are classified both as alleged war crimes -- violations of the codes and practices of war -- and as crimes against humanity, defined as severe crimes conducted against innocents, often outside the context of war.
But noticeably absent are charges of genocide. This is striking because Milosevic's government was blamed for as many as 10,000 killings of ethnic Albanians during the opening weeks of the 1999 war for Kosovo. It now appears that these mass killings have not been borne out by two years of excavations and investigations.
The charges Milosevic must answer to in The Hague are significantly different from the charges of genocide leveled by London and Washington just two years ago. During the initial weeks of the war, NATO governments claimed that the numbers of ethnic Albanian dead and missing ranged in the tens of thousands. Eventually, the accepted number of Albanian dead settled around 10,000.
The ICTY has exhumed about 4,000 bodies to date, according to a spokeswoman. However, many of these bodies have not been definitively identified, either as non-combatant ethnic Albanians or otherwise. They may be casualties of battle, collateral damage or victims of ethnic infighting. More Albanian bodies have recently been discovered in Serbia.
Late in 2000, the ICTY changed its tactic: It shifted from conducting a mass search for the killing fields to putting together a case, based on available evidence that would convict Milosevic. As a result, the charges are certainly somber but of lesser magnitude. Rather than charges of genocide, Milosevic would stand trial for war crimes -- violations of the Geneva Conventions that are comparatively common in conflict -- as well as certain crimes against humanity, but not genocide.
The tribunal is helping to set an important and ironic precedent. By dropping the genocide charge, the court has set a relatively undemanding hurdle for trying heads of state or military leaders. And the ICTY's most serious charges -- crimes against humanity -- are not iron-clad in the sense that the crimes are not on the scale of, say, Nazi Germany or Imperial Japan.
As a result, the threshold for crimes against humanity -- and their ferocity -- have been signficantly lowered. If an unpopular but democratically elected former leader like Milosevic can be indicted, extradited and tried for these crimes, so can many other political leaders in a variety of governments around the world.
Every leader who has sent troops into conflict is liable for civilian deaths or excessive force. The potential list ranges from influential figures like Russian President Vladimir Putin, for Chechnya, to lesser-known leaders like Mozambique's Joaquim Chissano, who presided over his own country's civil war and remains in power.
On this front, Americans may have some of the greatest legal exposure. Former President Clinton ordered U.S. operations in Kosovo, Somalia, Afghanistan and Sudan -- all of which resulted in civilian deaths. U.S. military officers may face additional legal exposure abroad, as would officers in the Canadian, British and Nordic militaries who contribute forces to peacekeeping operations.
The one significant trouble international courts will have in enforcing this precedent is the lack of an executive arm with which to reach out and grab suspects. No court in the world has the ability to coerce China, Russia or the United States to hand over a current or former leader. They enjoy much more political power than does a country like Chile, unable to gain the release of former President Augusto Pinochet.
The indictment process is likely to become more institutionalized. A permanent international war crimes tribunal, sponsored by the United Nations, is likely to begin operations within a few years. The United States is working to hinder its creation, and thus protect its own ability to wage war overseas.