Charges against Milosevic may be difficult to prove

If the lawyers ever get around to holding the trial of Slobodan Milosevic, the first head of state to be charged with war crimes…

If the lawyers ever get around to holding the trial of Slobodan Milosevic, the first head of state to be charged with war crimes, they will be advised to take a deep breath before reading the charge sheet - it could be a long one.

The Yugoslav President has taken a leading role in orchestrating a series of wars that have torn Yugoslavia apart and has done more than most to give the post-Cold War world its bitter taste.

His face, with that swept-back hair and wide forehead, is as familiar an image on TV screens as are the lines of refugees who seem to march, year after year, down dusty roads with their homes burning behind them.

But one of the oddities of the war crimes process is that he will not be charged with the wars themselves - only with the conduct of his troops while they are being fought.

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The United Nations is careful not to make war itself illegal - only to frame rules designed to curb its worst excesses. War crimes charges levelled against Mr Milosevic will be based on the Geneva Conventions, a series of acts signed after the second World War which try to limit the excesses of armed conflict. The guiding rule of the conventions is to prevent actions which have no military necessity.

Thus killing a civilian in a bombing raid on a military target is probably considered acceptable but killing civilians because you feel like it, not as the fallout of a military operation, is banned.

The excesses in Yugoslavia began in 1991, when Serb troops rolled into the Croatian town of Vukovar at the end of a three-month siege and butchered patients in hospital beds.

They continued in Bosnia, with more than one million people uprooted and the phrase "ethnic cleansing" added to the world's lexicon.

War crimes lawyers will charge Mr Milosevic with specifics, such as the destruction of a particular house or maybe the rape of a particular woman. Having established a war crime was committed, they will then try to prove a link to him as commander-in-chief. They need not prove he pulled the trigger, or even that he ordered the trigger to be pulled, but only that, as commander-in-chief, Mr Milosevic is responsible for the actions of the troops under his command.

Even so, most of the horrors committed in the wars of Yugoslavia will be ignored by the court. In Bosnia, Mr Milosevic had no direct control of the Bosnian Serb forces that wiped out more than 100,000 people and besieged Sarajevo, although he gave equipment and men, including paramilitary forces, to the struggle. In Croatia, it will be hard to build a link between Mr Milosevic and the gangs of armed civilians who took to the streets.

Kosovo, in fact, may give the UN War Crimes Tribunal, based in The Hague, its strongest cases. In earlier wars Mr Milosevic could argue that the army was to some extent independent of his wishes. But after a series of command purges, there is no doubt that army commanders are now his puppets.

One defence Mr Milosevic may use is that it takes two to make a war. Croat, Muslim and Albanian enemies have their own share of war crimes but, say the UN prosecutors, the numbers indicted tell their own story: in Bosnia, three Muslims were indicted and about 15 Croats - compared to about 60 Serbs.

Politics probably lies at the heart of the decision to indict Mr Milosevic, a move that comes just as Russia is trying to broker a peace deal between him and NATO. War crimes chief prosecutor Ms Louise Arbour was reportedly worried that Russia was about to offer Mr Milosevic immunity from prosecution, in exchange for allowing NATO troops into Kosovo. Now she has got her indictment in, scuppering any such deal.

A second defence for Mr Milosevic might be that he did not realise, at the time these actions were committed, that they were crimes. America had its share of atrocities in Vietnam, Russia in Chechnya and China in Tibet and none of their leaders ended up before the War Crimes Tribunal. If the tribunal ultimately fails, this selectivity may be the rock that breaks it.

Catching Mr Milosevic will be another matter. More than half the Bosnian Serbs indicted for war crimes in Bosnia, including former president Dr Radovan Karadzic, remain free more than four years after the end of the war.

NATO troops have seized more than a dozen of those indicted but they are unlikely to launch an operation into Yugoslavia to repeat the trick.

More likely is a standoff, perhaps lasting many years, in which Yugoslavia refuses to offer up its President and other top officials to The Hague, and the West in return refuses to offer reconstruction aid to sew this battered country back together.