The War Crime Gambit and the Negotiation Process
1210 GMT, 27/05/99

There are two rules of warfare. The first is to place your opponent in a position in which he feels psychologically overwhelmed and defeated. The second is to always give your opponent room to retreat. There is a deep tension between the two. Giving your opponent a sense of utter defeat could also give him a feeling that he has nothing to lose. Despair can give way to suicidal resistance. Giving your enemy room to retreat could give him a sense of hope, causing further resistance. Finding the right mix between the two is critical in any situation in which a negotiated end is required.

NATO has been trying to create a sense of hopelessness in Belgrade while, at the same time, providing it with a satisfactory line of retreat. All of this week’s discussions--of troop buildups, leaks of hidden plans for ground wars, the buildup of aircraft in-theater, the attempt to create at least the appearance of solidarity within NATO--represent attempts to create a sense of despair in Milosevic that will induce him to retreat.

The apparent decision by a United Nations panel to indict Milosevic for war crimes is partly an autonomous judicial process. We emphasize the term partly, since neither the indictment nor the timing of the leak of the indictment would have taken place without NATO’s approval and oversight. It is part of the attempt to give Milosevic the feeling that his world is imploding. It is not clear how Milosevic will respond to it psychologically. What is clear is that it increases the likelihood that Milosevic will feel that lines of retreat are being cut off. That has the real possibility of increasing resistance to diplomatic efforts to end the war.

Everything that has been done in the past two months has been done in an attempt to convince Milosevic that unless he retreats from Kosovo, NATO will deliver him a crushing blow. An indictment for war crimes carries the message that even if he retreats from Kosovo, a crushing blow will be delivered. From Milosevic’s point of view, therefore, what is the point of retreat? Having attempted to personalize the war as a struggle between Milosevic and NATO, the United Nations indictment closes the circle on him, making it personally irrational for him to pursue a war ending strategy.

The theory behind war crimes trials is that they serve as a deterrent against genocide. The weakness of the theory is that even if they do serve as a deterrent (and there is little evidence pointing in that direction) once the charge has been leveled, the threat of war crimes punishments increases resistance and decreases the incentives for war ending strategies that would limit genocide. In other words, assuming that the indictment is true and Milosevic were guilty of war crimes, the threat of punishment increases his interest in avoiding a negotiated settlement and prolonging the war, while in no way limiting either his means or interests in continuing the war crimes. In short, if he is going on trial for war crimes, Milosevic has absolutely no personal interest in ending the war on any terms other than a Serb victory.

The underlying theory here, discounting the strange thought processes of international lawyers, is that by focusing on Milosevic’s guilt, the Serb public will be motivated to distance itself from Milosevic. This view contains several major fallacies. First, the Serbian people do not believe that they or their government have committed crimes against humanity. Their view, one that is very sincerely held and for which some evidence is provided, is that the claims of war crimes have been manufactured by NATO powers as a justification for attacking Serbia. In other words, Serbia was the target of NATO because it, alone among European powers, refused to be drawn into NATO. NATO manufactured the war crime accusations in collaboration with the KLA in order to justify the war. Whether Western publics agree or disagree with this view, it is a widely held view in Serbia and it renders the Serbs impervious to a sense of guilt. They do not think they have committed crimes. Thus, rather than driving a wedge between Milosevic and the people, the charge will drive them closer together, with a shared sense of victimization.

Second, the Serb view is that Serbia is being held to standards to which no one else is held. The Serbs provide extensive evidence of some fairly horrendous crimes carried out against Serbs by Bosnians and Croats, and note that the West has been generally indifferent to those crimes. Indeed, their view in general has been that the West has singled Serbia out for victimization. There is some truth to that. When Serbs in Bosnia wanted to secede and form their own republic linked to Serbia, the West intervened to stop them. When the Albanians wanted to do something similar in Kosovo, the West intervened in order to permit it. The common denominator was not the right of peoples to self-determination, but opposition to Serbian interests.

Finally, and most important, the Serb public sees the current air assault on Serbia as a war crime in and of itself. They see Serbia, a sovereign state and a member of the United Nations, under unprovoked air attack, including attacks on civilian infrastructure, without United Nations sanction or declaration of war. Having filed suit to stop the war in The Hague, their position is that the real war criminals are the NATO political leaders.

In short, Serbia’s view is that no atrocities happened in Kosovo, that atrocities against Serbs are ignored, that Serbia is treated differently than anyone else in the region and that the real war criminals are NATO’s leaders. It does not matter whether people outside of Serbia agree or disagree with this point of view. What is essential is for them to understand that this is the perception of the situation inside Serbia. Therefore, indicting Milosevic for war crimes will not weaken his position in Serbia, but will in all likelihood confirm that, whatever his faults, he is being made the symbolic victim for the real victimhood of Serbia. They will rally to him.

Indicting Milosevic is, therefore, a bad idea on two counts. Strategically, it decreases rather than increases his motivation to make peace. Why should he make peace if the next step is to be a defendant in a court made up of his enemies in The Hague? Second, rather than causing the Serb public to turn on him, the indictment will cement his position as not only a Serb leader, but also a Serb martyr. His indictment will increase the probability that nothing short of a ground war will end Serb resistance. And since we are still of the opinion that a ground war is not a practical option that means that this indecisive misery could drag on indefinitely.

The issue of war crimes is a complex one. It is easy to indict a Himmler after the war and surely Himmler was the war criminal par excellence. What we will never know is how long the war against Germany was prolonged by Hitler’s clear understanding that there was nowhere to retreat and that no one would negotiate with him. Certainly a negotiated settlement was possible in August 1944. How many millions of Hitler’s victims would have been alive at the end of war had Hitler been given personal room to retreat?

The tragedy is that there are two types of justice. There is the justice for the victims who are already dead and justice for those who are not yet dead. The problem with the war crimes concept when put forward in time of war is that it can speak for the dead, while massively increasing the numbers of the dying. Even if Milosevic were guilty of the worst crimes he is accused of, the attempt to punish Milosevic could well cost the lives of many innocent people on all sides.

The road to hell is paved with good intentions and it is not clear that everyone’s intentions in this affair are good. What is clear is that the simple morality of the international lawyers, when applied in the midst of negotiations designed to end a war, are likely to bring consequences that we assume are anathema to the lawyers: a longer, more brutal war with many more victims. Cutting off Milosevic’s room for retreat to an acceptable peace may make sense in the arid world of jurisprudence, but in the real world of bombs and blood, it is playing with countless lives.

In our view, regardless of the moral or legal merits, the indictment of Milosevic will only serve to complicate the inevitable process of negotiations. We do not believe that this is intentional on the part of either UN officials or NATO leaders. It simply flows from a lack of clarity about what is possible and necessary at this juncture

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