JURIST Special Guest Columnist William Montgomery, US Ambassador to Yugoslavia (later Serbia and Montenegro) from 2001-2004, says that as the euphoria over the arrest of Radovan Karadzic fades and reality sets in, it's clear that his case poses continuing challenges for the Serbian government, the European Union, and of course the prosecutors and judges at the International Criminal Tribunal for the former Yugoslavia who wish to avoid the damage done to the local credibility of that court by the trials of Slobodan Milosevic and Vojslav Seselj…

In 1996 and early 1997, as Special Advisor to the President and Secretary of State for Bosnian Peace Implementation, my biggest confrontations and challenges were not with the various Bosnian parties, but in the relationship between our offices in the State Department and our counterparts in the Pentagon. The uniformed military and their civilian leaders were terrified that our troops would become targeted in a form of guerrilla warfare in Bosnia (pity that similar concerns weren't a factor several years later in the case of Iraq) and determined that there would be no "Mission Creep" which would keep them in Bosnia. This meant that the military narrowly defined its mission as only providing the overall security for Bosnia. They viewed virtually everything else, from refugee return to elections to reconstruction efforts as not their concern or responsibility. Convincing them otherwise was a constant battle.

This attitude was strongest with regard to the apprehension of indicted war criminals. The U.S. military at that time fiercely refused to participate in any way in their capture for all the reasons stated above. So during this critical post-Dayton period, Ratko Mladic was giving TV interviews on the ski slopes of Jahorina (outside Sarajevo) and Radovan Karadzic was attending political rallies openly and going through military checkpoints with impunity.

This changed in mid-1997, when the United States, along with key allies, finally agreed to utilize their military and intelligence forces to apprehend war criminals. The pendulum then continued to swing decisively to the other end of the spectrum, as the U.S. government made it official policy that the apprehension of both Mladic and Karadzic was essential for the stabilization of the Balkan region and a necessary step for our forces to fully withdraw and turn responsibility for the region over to the EU. Since that decision was made, many years ago now, the capture of Mladic and Karadzic (and all other indicted war criminals) has been a major U.S. government – and EU – priority. Through the use of various "carrots and sticks" we insisted that all the governments in the region consider it a priority as well. Despite these efforts and despite the fact that over one hundred and thirty other indictees have been arrested or persuaded to surrender, the top political and military leaders of the Bosnian Serbs – Karadzic and Mladic – eluded capture.

The immediate impact of the dramatic announcement last month that Radovan Karadzic had finally been arrested was an outpouring of international support for Serbia and its new government. It was seen as a major victory for those in the European Union who had successfully argued for concrete steps to support pro-European parties in the recent Serbian elections. The EU "Soft Power" had once again shown its effectiveness: first in helping to bring about a pro-European government and then the arrest of one of the most wanted fugitives in the world.

Notwithstanding a few small-scale protests, the public reaction in Serbia has been muted. Much of the media attention has focused on uncovering details of the alternative persona he created for the past several years as an active, passionate practitioner of alternative medicine in Belgrade not shy about lecturing to the public and appearing openly. It is almost impossible to equate this bearded, bespectacled man with the charismatic wartime leader presumed to be hiding in a cave or monastery for years.

Cynics would say that the government deliberately chose to arrest Karadzic first, as he never enjoyed the same degree of popular support as Mladic. In this view, Karadzic's arrest was a "trial balloon." If this is the case, the government must be reassured by the lack of reaction. One of the amusing/pathetic/predictable events was the speed with which the Socialist Party and the Ministry of Interior (the Minister is Socialist Party leader Dacic) disavowed any knowledge or responsibility for the arrest. At the same time, they gave no signs of a willingness or desire to endanger the new governing coalition as a result.

It is unknown at this point if Karadzic will say anything about his years as a fugitive. It will be interesting if he tells the truth and probably even more interesting and controversial if he mixes some lies and allegations in as well. There is an insatiable demand and a readiness to believe any sort of statement he may give, no matter how implausible, about relationships with foreign governments, Serbian officials, and the Republika Srpska. In the meantime, investigators will be going over every document; every phone call; and every other item of evidence they can find to uncover traces of his life as a fugitive and to learn more details of his support network. It is possible, for example, that the same sources could have provided false documentation both to him and Mladic. Discovering that link could help lead to Mladic himself. At the same time, there are many unanswered questions for the Serbian government as well: when and how did they first learn of Karadzic's false identity and location? Who in the government was informed and when?

As the euphoria over the arrest fades and reality sets in, challenges abound. While getting credit for arresting Karadzic, ironically the Serbian government has put itself under even more pressure than ever before to arrest Mladic and the other remaining fugitive, Goran Hadzic. The arrest of Karadzic "proved" that if the government really wished to do so, it could find these fugitives. Certainly, neither of them can be sleeping easily these days.

The EU faces its own challenges. Serbian politicians will be pressing them hard to implement the Transitional Trade Agreement, which is the first step towards receiving official Candidate status for EU membership. They hope to receive this status early next year. The EU may find it hard to comply, as it has its own issues with the uncertain future of the Lisbon Treaty and corresponding statements by some that no enlargement can take place until this question is resolved. Moreover, many will continue to insist on the apprehension of all indicted war criminals before taking further steps.

The ICTY prosecutors also face challenges. It is interesting to compare the indictment of Milosevic for actions in Bosnia with the corresponding indictment of Karadzic. The Milosevic indictment is a comprehensive overview of the Bosnian conflict with all the main actors (including Karadzic) listed in it. One of its central themes, bolstered by the minutes of meetings of the Yugoslav Supreme Defense Council, was the extent of the Serbian government's decision-making role in events in Bosnia – including particularly Milosevic, but also the Yugoslav Army and paramilitary units. In striking contrast, the Karadzic indictment in its entirety never once mentions the name "Milosevic" and limits mention of outside involvement only to some actions of the Yugoslav Army. It focuses on the Bosnian Serb political lea
dership, principally Karadzic, as those responsible for war crimes committed by the Serbian side. Confusing the issue even more is that it is widely known that Mladic and Karadzic loathed each other and that oftentimes Mladic refused to follow Karadzic's directives. Moreover, documents show that Mladic until at least 2002 remained an active duty officer of the Yugoslav National Army. So to whom did Mladic owe his real loyalties? Who did he consider his Commander in Chief? How much real command authority did Karadzic or the rest of the civilian leadership have over the various Serbian military and paramilitary forces present in Bosnia?

This is not to say that Karadzic has much hope of ever living outside prison walls again. But given the high bar for conviction, which the Tribunal has recently demonstrated, the prosecutors will be hard pressed to prove all of the charges in the indictment "beyond a reasonable doubt." Both the Prosecutor's Office and the Tribunal itself are keenly aware that both the Milosevic and Seselj trials did great damage to the credibility of the ICTY. Their challenge is to see that the Karadzic Trial helps to restore it, not damage it even further. It will be interesting in that regard to see how the court deals with Karadzic's efforts to represent himself in the Milosevic/Seselj manner.

William Montgomery was US Ambassador to Yugoslavia (later Serbia and Montenegro) from 2001-2004</i
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