February 21, 2002
Milosevic in The Hague
"A triumph for the civilized world." So characterized The New York Times about the war crimes trial of Slobodan Milosevic that started this past week in The Hague.
Certainly there is cause in the international legal community for such triumphalist sentiment. When the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia in 1993, few could have possibly foreseen that Milosevic would ever stand trial.
As Richard Dicker, a lawyer for Human Rights Watch, put it: "When I was here in 1996, it was derided as the international tribunal for small fry. Tomorrow the biggest fish of them all goes on trial."
Yet in trying the "biggest fish," the tribunal also faces several risks. A first set of concerns involves the nature of the charges and the character of the defendant.
The political thinker Otto Kirchheimer argued that all trials, at least those that are fairly conducted, must be characterized by an "irreducible risk" -- the chance that the prosecution will fail to shoulder its burden of proving guilt, and that the accused will consequently be acquitted. In the case of Milosevic's trial, this risk is not entirely negligible.
Proof that might be persuasive to a historian or neutral observer might run afoul of the court's rules of evidence. However else one might characterize Milosevic, none gainsay his cunning, and to create a legally compelling case against him will require both a solid prosecutorial strategy and acts of great courage on the part of witnesses called to testify against their former president.
But even if Milosevic should be convicted, the trial could founder in other respects. Spectacular trials of international crimes -- such as the Nuremberg, Eichmann and, now, Milosevic trials -- are inevitably asked to do more than simply render justice to the accused in a conventional legal sense.
These trials are asked to clarify the historical record and to demonstrate to the world community the sober and grand neutrality of the law. In his self-pitying, yet intelligently prepared, harangues before the tribunal, Milosevic threatens these aims.
The trial promises to be long -- lasting for two years, by most estimates -- and the court will have to work hard to make sure that Milosevic's attacks on its jurisdiction and self-serving presentation of history do not end up hijacking the didactic aims of the trial.
A second set of concerns implicates the larger trend of judging international politics by the standards of criminal law. Until Nuremberg, the notion that a statesman could be treated as a criminal in international law was unthinkable.
The act of state doctrine and the principle of sovereign immunity -- basic norms of international diplomacy and law -- barred foreign courts from subjecting independent states and their representatives to criminal proceedings. This arrangement long left international criminal law something of an oxymoron. A nation found in violation of an international convention could be punished -- but only collectively through the kind of reparations disastrously imposed upon Germany following its defeat in World War I.
Nuremberg changed much of this. The charter of the ground-breaking trial of Hermann Göring and other leading Nazi functionaries adopted the radical idea that statesmen could be held personally responsible for the criminal acts of their regime, even acts committed against their own domestic population.
For years, however, Nuremberg's legacy remained more conceptual than practical. Decades of Cold War struggle cynically cast international law as a partisan tool of geopolitics, to be championed when advantageous and ignored when not. Only with the explosion of regional violence unleashed by the demise of the Cold War's strategic equipoise has the world community rededicated itself to the enforcement of international criminal law.
The trial of Milosevic stands as the greatest achievement of this redoubled commitment. Unfortunately, some international legal activists have aggressively sought to push the Milosevic precedent in directions that are far from salutary.
In Belgium, a nation that has adopted a remarkably liberal approach to matters of jurisdiction, legal groups have prepared cases against everyone from Ariel Sharon to Yasser Arafat and Fidel Castro. And no less a writer than Christopher Hitchens has passionately argued in favor of trying Henry Kissinger as a war criminal.
These agitations, however well-meaning, are to be regretted. For better or worse, the law is not generally concerned with political complexity; it remains oblivious to the nuances of diplomacy and realpolitik and cares only that violators of its norms receive punishment.
Long after emerging as a suspect in international crimes, Milosevic apparently received personal calls from President Bill Clinton, the tenor of which was intimate, and, on the Serb's part, avuncular. To the legal crusader, this no doubt stands as an odious example of Clinton's spineless kowtowing to an international thug; to others, however, it signals a politically sensitive gesture to prod a bellicose foreign leader to respect a precarious peace (in this case, the Dayton Accords).
In this regard, of equal importance to the future of international law as the opening of the Milosevic trial was the recent decision (Feb. 14) handed down by the International Court of Justice (ICJ), also housed in The Hague, though institutionally autonomous from the Milosevic tribunal. In a case involving an arrest warrant issued by a Belgium magistrate for Aboulay Yerodia Ndombasi, the Congolese foreign minister at the time of the warrant's issuance, the ICJ concluded that serving statesmen were shielded from criminal prosecution in foreign national courts.
On first blush, this decision seems to contradict the spirit of the Milosevic trial: it appears to defend the very prerogatives of statesmen that have long permitted them to flaunt international law with impunity. But in fact, the decision simply places a necessary corrective on the agitations of overzealous international lawyers, a corrective that points international law in a direction both practical and wise.
The decision, which effectively ends any effort to put Sharon on trial in Belgium, guarantees that international law is not turned into the mouthpiece of global political grievance. By limiting the opportunities to turn the law into an all-purpose tool of political harassment, the ICJ has properly increased the likelihood that international trials will be reserved for the perpetrators of only the most extreme abuses and atrocities. In so doing, it has preserved and enhanced the ultimate efficacy of international justice.
The trial of Milosevic goes forward, but not that of Sharon. And so it should be. To treat Sharon as a Milosevic would not demonstrate that such law binds the strong as well as the weak, the triumphant as well as the conquered. It would simply demonstrate that a fervid breed of legal crusaders had placed diplomacy under the majestic tyranny of the law.