Confusion Than Closure at The Hague
Milosevic has challenged the legitimacy of the international war-crimes
tribunal at The Hague that now has him in custody, on rather narrow
grounds. The tribunalís legitimacy could form the basis of an interesting
discussion, but itís a bit beside the point. The tribunal has no
particular legal standing, but it has power, the ability to use
force to back up its judgments. But, then, raw power has ever been
the real legitimacy of states and state-spawned institutions. The
sheen of legalistic rhetoric is only for the rubes.
the first thing to understand about the tribunal. In reality it
is something of a floating (or is that gloating?) craps game recognized
by those who choose to recognize it, for whatever reason. Like international
law, a great fiction (as anybody who has actually studied it recognizes)
that pretends to be indispensable to international relations, the
tribunal has no particular moral or even legalistic legitimacy.
Insofar as it has the power to compel people to appear before it
it has power, but power is not the same as authority.
might think, then, that the tribunal would be somewhat cautious
in its zeal to prosecute Milosevic and other international baddies.
When oneís legitimacy rests only on recognition and reputation,
one is often well-advised to avoid actions that would besmirch oneís
reputation. But those who fancy themselves the enlightened denizens
of the "international community" donít join that disreputable
guild because of overweening modesty.
FOR THE HAGUE
when it does put Milosevic on trial (if it ever actually does) the
war crimes tribunal may accomplish the improbable feat of converting
a monster into a martyr. It has already destabilized Yugoslavia
and cast doubt on the sincerity of advocates of a more extensive
international criminal court with a more far-ranging mission. In
the end it may discredit the very idea of impartial justice administered
by international or transnational organizations.
talked with Gary Dempsey, a foreign policy analyst at the libertarian
Cato Institute who has served as an international elections supervisor
in Bosnia-Herzegovina. He reminded me that one of the key arguments
made for international courts and tribunals is that they would kick
into action only if the country in which an accused war criminal
resided was unable (perhaps because of chaos or insurrection) or
unwilling (perhaps because of stubborn notions of nationalism) to
bring him to trial itself.
courts arenít designed to reduce national sovereignty, say those
who lust for such institutions to be established. They would be
complementary to national justice systems rather than invasive replacements.
eagerness to have the reputed Butcher of the Balkans before the
court established to serve the interests of NATO aggressors suggests
this argument is or has always been disingenuous at best and probably
consciously deceptive. In this case, Yugoslavian authorities had
arrested Milosevic, were preparing charges on fraud and corruption
and would probably have filed something resembling war-crimes charges
sooner or later. Yugoslavia was handling things. According to international
tribunal advocates when theyíre arguing for them to be established
or expanded and want to reassure silly reactionaries, the tribunalís
course would have been to let Yugoslavian justice, such as it is,
take its course and think about stepping in only after it had manifestly
addition to making it clear that the tribunal cares more for show
trials than the notion of independent, disinterested, dispassionate
justice that provide the best rationale for its very existence,
it has managed to destabilize Yugoslavia in the process. The sudden
decision to move Milosevic to The Hague has intensified deep divisions
in Yugoslavian politics.
as I understand things, (remembering that some nuances canít be
compressed in a piece this size even if I understood them fully)
Yugoslav President Vojislav Kostunica and Serbian Prime Minister
Zoran Djindjic are rivals for power. Kostunica, who ran with U.S.
support (overt, covert and monetary) as a fierce critic of Milosevic,
has opposed sending the former ruler to The Hague, as do most leaders
in the province of Montenegro. Yugoslavian Prime Minister Zoran
Zizic, a Montenegrin, resigned in protest over the extradition.
this has got to build on doubts many Montenegrins have already expressed
about staying part of Yugoslavia. If Montenegro withdraws from the
federation, there will be no more Yugoslavia and presumably Kostunica
will have no job. Djindjic will have prevailed, at least until discontent
with him erupts into violence.
all this makes the volatile Balkan region more stable and more conducive
to democracy and the rule of law is difficult to see.
Milosevic has already shown an ability to grandstand in what is
proving to be quite a vulnerable institution. He appeared Tuesday
alone, without a lawyer, and questioned vociferously the legitimacy
of the tribunal. The grounds of his complaint that the tribunal
was created in 1993 by the UN Security Council rather than by the
entire UN General Assembly is somewhat legalistic. It has already
been tried by a previous defendant and dismissed.
hereís the kicker. It was the tribunal itself that dismissed the
charge that it wasnít legitimate. And the tribunal acts as the sole
judge of its own legitimacy, with no appeal to a different court
or to the UN. That hardly makes it look like a tribune of disinterested
is also true, as Cato vice president for defense and foreign policy
Ted Galen Carpenter and others have noted in articles and monographs,
that the tribunal at The Hague offers little in the way of the kind
of due process rights customary in US and most Western court systems.
It allows secret testimony and hearsay testimony and doesnít allow
defendants to confront and challenge certain witnesses against them.
TO MAKE THE CASE?
this case, many of the papers and witnesses that might tie Milosevic
personally and directly to atrocities in Kosovo are in Belgrade
and might never be released to The Hague. This means that much of
the evidence that would make a conviction of Milosevic credible
in the eyes of fair-minded people is unlikely to be available.
can be sure Milosevic and his allies will play up this fact, arguing
that the tribunal is a "witch hunt" and a "kangaroo
court" proceeding with or without proper evidence to a preconceived
conclusion. Much of this criticism will be valid.
THE PROPAGANDA ANGLE
argument can be made (though I believe they were essentially "victorsí
justice") that the Nazi war crimes trials after World War II
had an impact within Germany because they were held in Germany,
in public, with all the defendants, witnesses, papers and evidence
readily to hand. Being held in Germany, with a certain amount of
dignity and protocol, they may have helped Germans to come to terms
with what certain German leaders had done in their name. The trials
may have played a role in the denazification (to the extent it happened)
of wartime Germany.
contrast, a trial of Slobodan Milosevic, in a foreign country, with
incomplete evidence and a predetermined conclusion, could actually
set back the process of moving beyond the Milosevic era in Serbia.
Plenty of people in Serbia will buy the idea that Slobo is being
singled out by the NATO aggressors to take the fall because his
side lost. The upshot could be reinforcement of the most virulent
nationalistic tendencies in Serbia, and denigration of the idea
that democracy and the rule of law are worth an honest trial. So
in their overweening hubris the international tribunalists might
not only miss out on the chance to reinforce democracy in Serbia,
they might very well undermine and destabilize it.
most optimistic estimates are that a trial of Milosevic might get
underway in late August and last at least two years. That means
two years of mutual grandstanding, with little light or justice
likely to emerge.
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