President Clinton has again raised the prospect that President Slobodan Milosevic will one day find himself in the dock in The Hague at the International Criminal Tribunal for the Former Yugoslavia, accused of war crimes.
The suggestion is not new: as early as December 1992, the acting US secretary of state Lawrence Eagleburger identified Slobodan Milosevic and a number of his paramilitary agents including Zeljko Raznatovic (known as Arkan) and Vojislav Seselj, now a minister in Milosevic's government, as suspected war criminals.
Mr Eagleburger based his claim on the fact that the atrocities committed by Serb forces were part of a premeditated campaign to maximise the territory controlled by the Serb-run state through "ethnic cleansing". However, to convict Milosevic it would have to be proved that this campaign was ordered centrally by him. As the chief prosecutor at The Hague, Ms Louise Arbour, has warned: "There is no point going to trial without stringent proof, factually pointing to a clear chain of command. That's where you get derailed."
However, there is growing pressure to attempt to prove such a chain of command. Three years ago, two US experts produced a tightly argued pamphlet saying that there was a real prospect of this happening. A Prima Facie Case for the Indictment of Slobodan Milosevic was written by Paul Williams, executive director of the Public International Law and Policy Group and a Fulbright Research Scholar at the University of Cambridge and Norman Cigar, Professor of National Security Studies at the United States Marine Corps School of Advanced Warfighting.
The pamphlet argues that a prima facie case can be made that Milosevic exercised authority over Yugoslav and Serbian forces guilty of dozens of atrocities in Bosnia, Croatia and now Kosovo. However, while senior and junior army officers, police, camp guards and civilians have been indicted at The Hague, Milosevic remains at the head of his regime, conducting another brutal campaign against civilians.
The Hague Tribunal groups various acts into four categories of crimes of war:
Grave breaches of the Geneva Conventions of August 12th, 1949. These include killing, torture or inhumane treatment, destruction of property, unlawful deportations and hostage-taking.
Violations of the laws or customs of war. These include using weapons calculated to cause unnecessary suffering; unjustified destruction of population centres; wilful destruction or damage to institutions of religion, charity, education, the arts and science or historic monuments; the plunder of private property.
Genocide. The deliberate attempt to destroy, in whole or in part, a national ethnic, racial or religious group by killing or injuring its members. This category also includes as a crime a conspiracy to commit genocide.
Crimes against humanity. Murder, enslavement, deportation, imprisonment, torture, rape or persecution of civilians.
Based on these definitions it is easy to show that countless war crimes have been committed by Serb forces in the wars in Bosnia and Croatia, and - according to Kosovar refugees - in Kosovo as well. Names of Bosnian and Croatian towns have become bywords for appalling war crimes.
The two that stand out are Vukovar and Srebrenica. In late 1991 the Yugoslav army laid siege to the Croatian city of Vukovar, reducing it to rubble and killing hundreds of civilians in the process. They entered the city together with Serb paramilitaries, removed 400 men from Vukovar hospital, beat them and massacred 260.
In July 1995, Bosnian Serb forces together with former Yugoslav army units and paramilitaries overran the so-called "safe area" of Srebrenica. They systematically slaughtered thousands of its inhabitants, burying hundreds more alive, killing children in front of their parents, raping women and carrying out other unspeakable acts of savagery against civilians. Proving that the offences took place is easy. Proving that Milosevic is individually responsible, however, would be the key to a successful prosecution.
There are three possible bases on which a person may be held individually responsible by the Tribunal for such offences:
Direct responsibility: If a person commits, plans, instigates, orders or otherwise aids and abets in the planning, preparation or exercise of any of the offences.
Command responsibility: If a person knew subordinates were about to commit or had committed one of the offences and failed to take steps to prevent it.
Complicity-based responsibility: if a person commits, directs, aids or abets genocide or fails to prevent or punish subordinates who do so, or is complicit in genocide, he or she is individually responsible.
The question is whether it can be shown that President Milosevic directed, instigated or planned war crimes by virtue of his control over Serb forces and their paramilitary agents. It would, however, be enough to show that he failed to prevent the commission of war crimes by forces under his control, or failed to punish those under his control who carried out war crimes.
There is considerable evidence that Milosevic was centrally involved in co-ordinating with his military commanders the actions of the Yugoslav army in Croatia and Slovenia. Vojislav Seselj, commander of one of the most brutal paramilitary groups, has himself said he got requests from Milosevic from time to time to deploy his forces to particular areas. Some of those already indicted for war crimes have linked Milosevic to orders which resulted in particular atrocities.
Milosevic certainly exercised power, influence and control over those conducting the war and the accompanying atrocities. Even were he to claim he knew nothing about atrocities in advance, it can be shown that he did nothing to punish those responsible afterwards. His forces engaged in joint operations with the Bosnian Serb army, which carried out many of the atrocities. Milosevic was in regular contact with Radovan Karadzic, and there is evidence that he regularly had notice of planned atrocities. Former members of Milosevic's inner circle are also breaking ranks. Last year the Guardian interviewed a former paramilitary commander, a former police chief and a senior figure in the Milosevic government who all said that Milosevic directly controlled a group of secret police who organised a "dirty war" on his behalf. This was done through releasing thousands of convicts to fight with the paramilitaries, and arming these groups who then carried out the worst excesses in the "ethnic cleansing" campaign.
President Clinton said on Thursday that the possibility of indicting President Milosevic should be "examined", and that he had asked the Hague Tribunal to do this. Meanwhile a number of refugees who fled Kosovo in the past fortnight have already been flown to The Hague to talk to the Tribunal. The noose may be tightening.
A Prima Facie Case for the Indictment of Slobodan Milosevic, written by Paul Williams and Norman Cigar, is published by the Alliance to Defend Bosnia-Herzegovina, London.