International law is an ass
John Laughland says that the trial of Slobodan Milosevic is a travesty of justice Slobodan Milosevic was ahead of his time. When he made his first appearance in the courtroom of the International Criminal Tribunal for the former Yugoslavia at The Hague, President George W. Bush’s seat in the Oval Office was barely warm. The ‘war on terror’ was but a twinkle in Dick Cheney’s eye; the 9/11 attacks had not yet occurred; the invasions of Afghanistan and Iraq lay in the future; and torture in Abu Ghraib and the torching of Muslim insurgents in Fallujah with chemical weapons were as yet unknown. Slobo had by then spent ten years fighting and helping to fight Muslim insurgents, first in Bosnia and later in Kosovo. But the only thanks he has had is four years’ incarceration in Holland.
That incarceration is almost certain to lead to a life sentence. Even though the former Yugoslav head of state has always pleaded his innocence, producing scores of witnesses to prove it, the trial is still not due to end until 2010. With the budget of The Hague tribunal running at nearly $300 million a year, this is doubtless a comfortable sinecure for the lawyers involved, most of whom had pretty unsuccessful careers at home. But such a long trial is by definition a travesty of justice: the Nuremberg trials lasted just over ten months, from 20 November 1945 to 30 September 1946.
As the hearings have dragged on remorselessly — the prosecution took over two years to make its case — it has become obvious that the lawyers are struggling with the impossible task of converting Western politicians’ war propaganda into legal propositions which can stand up in court. They might as well have tried to prove the existence of weapons of mass destruction in Iraq. The trial has heard more than 100 prosecution witnesses, and not a single one has testified that Milosevic ordered war crimes. On the contrary: only last Tuesday, a Muslim captain in the Yugoslav army testified that no one in his unit had ever committed systematic harassment of Albanian civilians in Kosovo, and that he had never heard of any other unit doing so either. On 9 November the former head of security in the Yugoslav army, General Geza Farkas, an ethnic Hungarian, testified that all Yugoslav soldiers in Kosovo were handed a document explaining international humanitarian law, and that they were ordered to disobey any orders which violated it. What a contrast with US army practice!
Instead, what has emerged from the trial — to the general indifference of the world’s media — is that the Serbs were subject to horrendous provocations. In March, the tribunal indicted the Prime Minister of Kosovo, Ramush Haradinaj, a former commander of the Kosovo Liberation Army affectionately known as ‘Smile’ to his comrades. Among many other atrocities, the indictment recounts how in August 1998 Haradinaj’s number two and co-indictee, Idriz Balaj, who commanded a paramilitary unit called ‘The Black Eagles’, tortured three Albanian gypsies to death. According to the indictment, the brave freedom fighters, on whose side Nato was later to fight, cut off the nose of one of their detainees; slashed them in the neck, arms and thighs; rubbed salt into their wounds; sewed up the wounds with a needle; wrapped the three men in barbed wire; drove the barbs into their flesh with ‘an implement’; tied them to the back of their vehicle and dragged them behind it until they died. In June the same tribunal which had refused Milosevic’s request for bail allowed Mr Haradinaj to return home pending trial, having spent barely four months in The Hague.
In any proper court of law, the Milosevic trial would have collapsed long ago; for instance, when the previous presiding judge, Sir Richard May, unexpectedly died in July 2004. Since there are only three judges, this is equivalent to the sudden disappearance of four jurors, which would cause a criminal trial in this country to be abandoned or restarted. So determined, however, are the judges to obtain a conviction of their prize defendant that they have even ruled that he can be tried in absentia if he is too ill to defend himself in court. The judges themselves admitted that their ruling had no precedent in law, but legality has never bothered them much: ever complicit with the prosecutor, they allowed the addition of new indictments after Milosevic’s transferral to The Hague in 2001, even though this violates the key tenet of extradition law that a defendant may not be tried for charges other than those for which he was originally extradited. Transparency is not of much interest to the judges either: when I asked to see the medical evidence which, they claimed, showed that Milosevic was too sick to defend himself but not so sick that the trial should be abandoned, I was told it was confidential. And when on Tuesday Milosevic pleaded that he was too sick to continue, presiding judge Patrick Robinson simply barked, ‘Are you deaf? I told you to call the next witness.’ However, even more than the gross abuses of due process which it is committing, the Milosevic trial has shown the futility of trying to submit political decisions to the judgment of criminal law. Because it seeks to comprehend war as the result of the decisions of individuals, and not as the consequence of conflict between states, modern international humanitarian law sees trees but no wood. In the Milosevic trial, the role of the other Yugoslav leaders in starting the war — especially those who declared secession from Yugoslavia — is grossly obscured, as is that of the countless Western politi cians and institutions who were intimately involved at every stage of the Yugoslav conflict, and who encouraged the secessions. The trial of the first head of state since Marshal Pétain therefore now recalls not so much Nuremberg, but rather the infamous Riom trial held by Vichy France in 1942, when months were spent trying to demonstrate that Edouard Daladier, Léon Blum and others were criminally guilty of plunging France into war unprepared.
Moreover, instead of individualising guilt, The Hague trials have in fact reinforced the very sense of collective victimhood which they were supposed to dissipate. Opinion polls show that Serbs hate The Hague more than they hate Nato, the military alliance which bombed them in 1999: men can more easily accept defeat by a stronger opponent than judicial national humiliation. Anthropology teaches us that when violence breaks out, it spirals precisely because each side thinks of itself as the victim. The key, therefore, is to prevent anyone from casting the first stone. So whereas Nuremberg ruled that war should never be started, contemporary humanitarian law implies that Nato’s attacks on the Bosnian Serbs in 1995 and on Yugoslavia in 1999 were justified after all. Both those Nato wars were conducted without the agreement of the United Nations Security Council, and they thus provided the legal precedent for the 2003 attack on Iraq. The rest, now, is history.
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