Michelle Nicholasen is a reporter and researcher for FRONTLINE ONLINE

When the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, its stated goal was to prosecute those most responsible for crimes against humanity in the Balkans. It is now the spring of 1998 and only a handful of high-ranking wartime players are listed among the publicly indicted suspects. Perhaps the most striking omission is Slobodan Milosevic, former President of the Serbian republic, and now president of a rump Yugoslavia (Serbia and Montenegro).

Nearly every book written about the war puts him squarely behind the collapse of Yugoslavia--stirring ethnic hatred and revenge against Muslims and Croats, campaigning for the existence of a homogeneous and expanded nation for Serbs, and spearheading Europe's deadliest land-grab since World War II. Back in 1992, Lawrence Eagleburger, President Bush's Secretary of State, publicly labeled Milosevic a war criminal and called for his indictment. But six years later a public indictment still hasn't materialized. (It's possible that any number of sealed or secret indictments exist for high-ranking war criminals, but ICTY does not comment on sealed indictments or ongoing investigations. However, commentators close to the tribunal say a secret indictment for Milosevic doesn't make much sense, since a public one would give more steam to a fledgling democracy movement.)

By 1995, Milosevic seemed to have transformed his image when he became a signatory to the Dayton Peace Accord which ended the Balkans war. "He used Dayton to launder his reputation from trouble maker to peacemaker," says Jim Hooper, co-director of the Balkan Institute in Washington DC. "It was a US political decision that we would rely on him to retain the peace."

Today, however, that peace is precarious. Milosevic controls forces cracking down on separatist Albanians in the Kosovo region of Serbia, where almost 200 Albanians have been killed so far in 1998. And questions concerning Milosevic's responsibility and liability have once again come to the fore. Will he ever be indicted? FRONTLINE spoke with legal and political experts for their views and analyses.

"State department people will say we need him to keep the peace--that's one of the prices we've paid for peace in the region," says Hooper. "Not to overplay the analogy, but it's like if Hitler hadn't killed himself after the war, yet was excluded from the Nuremberg trails in order to help stabilize post-war Germany."

"The question asked is: If Milosevic is removed, do you get a worse alternative? Do you get a Seselj?" says Bill Steubner from the US Institute for Peace, referring to the Serbian paramilitary leader Vojislav Seselj who diplomats have described as a "psychopathic racist."

Other experts disagree that a Milosevic presidency is critical to stability in the region. "This argument is "a constant betrayal of a democratic Serbia. It presupposes that Serbia does not have democratic tendencies," says Cherif Bassiouni, director of the UN Commission of experts and law professor at De Paul University. He points out that in 1996 a democracy movement gained momentum in Belgrade, where demonstrations were held against Milosevic for over two months.

"The Tribunal has the capacity to indict, what it lacks is political will," says Hooper. " They realize that if they indict, there won't be a helpful and constructive response from their backers, like the US and Britain. The Tribunal decision is that it is impolitic to do it."

But Richard Goldstone, who was the Tribunal's Chief Prosecutor from 1993 to 1996, vehemently denies there was any pressure on him not to indict. "There was no political motivation all. We stated many times that we were looking into the top leaders across the board." And Steubener, a former advisor to the Tribunal, doesn't believe that any past or present prosecutor was ever put under direct political pressure to avoid certain indictments. "I can tell you that Louise Arbour is a tough guy. She just would not tolerate anyone or any country attempting to put pressure on her, and would call them on it if they did."

Steubner believes rather that the reason Milosevic hasn't been indicted has to do with the way the Tribunal began their work. The approach, re-iterated by Goldstone, was to create a pyramid to the top, focusing on lower-level war criminals first in order to build the chain of evidence to the top.

Steubner and others say this approach proved to be a great setback to the Tribunal's mandate. "You just can't start as low on the ladder as they did and work your way up in 100 years. There is so much to review and so much work to get all the pieces in place, they just got bogged down at the lower levels."

According to a source close to the Tribunal, not indicting Milosevic may have more to do with a lack of foresight than purely political questions: "It was simply a big job and the Tribunal probably didn't have enough people on staff and enough direction. Goldstone and Arbour are excellent public figures and excellent managers. But neither is an expert at this. Early on the tribunal lacked a type of guiding hand that knew the substance of law and fact. As a result a lot of people at lower levels were calling the shots ...and this is what may have caused major cases to go on the back-burner."

Meanwhile, other experts, including Goldstone himself, insist on a more fundamental reason: there is simply not enough hard evidence to indict Milosevic. After all, the Serbian leader was renowned for meticulously avoiding a paper trail, to the point where he prohibited note-taking at meetings. By using intermediaries at the Ministry of Defense and Ministry of the Interior in Belgrade, he ingeniously shielded himself from what was happening in Bosnia.

"Unlike Germany during World War II, you will never find the written order by Milosevic," says Steubener. Some of the documentation that does exist seems to favor him. "Milosevic will argue that he was only the lowly president of (the republic of ) Serbia when the atrocities happened, not commander in chief of the JNA (Yugoslav Peoples Army.)"

Former ambassador to Yugoslavia Warren Zimmermann is not at all surprised he has not been indicted. "Milosevic is very good at covering his tracks. I can imagine he would be hard to get. He never takes personal responsibility for anything and uses cut-outs who take the blame for him."

Yet two key people who were on the ground committing atrocities--the paramilitary leaders Seselj and Arkan (Zeljko-Arkan Raznatovic)--as of spring 1998 are not indicted either. Legal experts expect that if indicted and captured, the two could reveal damaging evidence linking Milosevic to their own war crimes. Two years ago Seselj, Milosevic's rival since 1993, told Time Magazine "I never heard Milosevic order ethnic cleansing, but I can give examples of indirect invitations to do so."

A lack of indictments for top Serb paramilitary leaders has prompted speculation that Milosevic is protecting them from being indicted even while being at odds with them. Or that perhaps a political message has been picked up by the Tribunal that Arkan and Seslej's testimony would force an indictment for Milosevic.

Back in 1996, Paul Williams and Norman Cigar, fellows at the Balkan Institute, had a hard time believing that the strongman who orchestrated genocide for four years had left so little behind. So they gathered and analyzed a wealth of public domain evidence to see if they could build a case. Cigar, a military and political analyst formerly with the Pentagon, translated interviews by paramilitary leaders, documented phone calls and mass media reports from Yugoslavia. At the same time Williams, a former State Department lawyer, structured a case against Milosevic not with creative legal word-smithing but based on statutes, rules of procedure and evidence from the Tribunal, and also the precedents set forth in the indictments of Radovan Karadzic and Ratko Mladic.

Their conclusion: Milosevic was criminally responsible for the commission of war crimes in Croatia and Bosnia by virtue of his direct and command responsibility over Yugoslav federal forces and paramilitary agents. (Suspected war criminals can be indicted even if they didn't pull the trigger, but ordered and planned crimes committed by others, or, if they failed to prevent crimes committed by their subordinates.)

Williams and Cigar showed that "in addition to his sometimes day-to-day involvement with forces responsible for the commission of war crimes, Slobodan Milosevic operated by a system of `commander's intent,' whereby general goals were set within which subordinates could, provided that they contributed to the overall achievement of those goals, act on their own initiative."

Working for two months, Williams and Cigar wrote a prima facie case for his indictment, sent copies to the Tribunal and posted it on the internet.

Williams says laying out the case against Milosevic was "pretty straightforward." But the Tribunal did not act on the report. One source close to the Tribunal admitted "almost no one read the whole thing. A stack of copies sat on a back table." Williams believes that the evidence in his report is not satisfying prosecutors because they expect higher standards for indicting a national leader.

Williams explains that by demanding an iron-clad case for high-ranking suspects, "Judge Arbour has unilaterally raised the standard of evidence. Tribunal procedure says that to indict you [only] have to convince the judges beyond a reasonable doubt."

Williams and Cigar admit that their research didn't turn up any "smoking guns" implicating Milosevic. However, they point out, neither did many other investigations that did result in indictments. "The prima facie case was good; it just wasn't enough," says Bassiouni.

Reflecting on his tenure with the Tribunal, Goldstone says that showing Milosevic was "giving arms and military assistance (to paramilitary units and the army) is not enough" to establish Milosevic's liability. "You have to have proof of direct or command responsibility."

If any hard-core evidence exists to prove Milosevic's liability it probably resides in the vast intelligence archives of countries like the US or UK, experts say. Historically, the intelligence communities have never turned over their data, citing the need to protect their procedures and techniques.

"The evidence is out there. If you ask--is there enough evidence in the office of the prosecutor of the Tribunal, I don't think so. But it's out there there's no doubt about it. It's out there in the intelligence files of the US, France, Germany, UK" says one legal specialist who asked not to be named. "If there is a political agenda here it is that the US is not going to use its intelligence resources to help the judicial process."

While he was at the Tribunal, Goldstone says he "requested information from all relevant countries," but declined to elaborate on who cooperated and who did not.

"Either the US has classified evidence and for one reason or another is not sharing it with the Tribunal or, we are wasting huge amounts of money in intelligence gathering which is not giving us anything." says Steubner who admits he is not convinced the major countries even have useful information.

It's hard to believe that the Tribunal would be sitting on valuable evidence against Milosevic and not move forward. More likely, experts say, the prosecutors have learned their lessons from miscalculations in some of the early cases and are being cautious about indicting someone like Milosevic. Steubner believes there is probably enough evidence "on its face", or prima facie, that could get Milosevic indicted.

"You could probably get an indictment but what are you going to do at the trial if you haven't amassed enough evidence, and you know that someone like Milosevic will have a formidable defense team. If you lose any big fish, you have emasculated the Tribunal."

"I heard early on that the arrests were not based on good evidence When you go after big fish, you have to get it right. If the evidence would turn out to be insufficient, it will set back the Tribunal process all around the world," says Zimmermann.

But some scholars from the non-governmental organizations community fear the five-year-long delay in indicting Milosevic is setting a bad precedent. "The point of the Tribunal is not only to hold people accountable for their crimes, it's to deter the next genocide. When you let someone stay in power who deliberately planned the genocide of a people, it sends a message about the integrity of the Tribunal. And a message about its ability to deter the next genocide, which we can see is starting all over again in Kosovo," says Hooper.

Referring to Milosevic's primacy in the war, Steubner says "There are things we all know to be true, but to prove it in court is another matter. Many experts remind us that it's not illegal to make war."