July 4, 2001
Slobodan 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.
Thatís 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.
You 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.
But 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.
I 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.
These 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.
The 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 failed.
In 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.
Briefly, 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.
All 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.
How all this makes the volatile Balkan region more stable and more conducive to democracy and the rule of law is difficult to see.
Meantime, 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.
But 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 justice.
It 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.
In 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.
You 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.
An 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.
By 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.
The 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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