Richard Falk is Albert G. Milbank Professor of International Law Emeritus, Princeton University, and Visiting Professor in Global Studies at the University of California, Santa Barbara.
Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice
by john laughland
London, Pluto Press, 2007. 214 pages
Hardback: UK £50.00, US $90.00. Paperback: UK £14.99, US $24.95
John Laughland has written a strange, troubling book. It is a devastatingly persuasive critique of how badly the International Criminal Tribunal for the former Yugoslavia (ICTY) handled the trial of Slobodan Milosevic, intertwined with an indefensible refusal by the author to acknowledge Milosevic’s personal role in organising governmental support in Belgrade for a series of bloody policies that add up to a genocidal pattern of official conduct. In other words, Milosevic is presented as the victim of a political show trial that properly deserves the most intense critical reflection. But the other half of the narrative is so muted as to be absent: that is, Milosevic would almost certainly have been convicted of crimes against humanity and genocide if the trial had been properly constructed and conducted to accord with international due-process standards. The evidence of such guilt exists, and is overwhelming. Of course, an assessment of both the flawed ICTY treatment of the case and the degree of guilt properly attributable to Milosevic will never be formally determined as he died on 11 March 2006 before he had completed the presentation of evidence in his defence; and Laughland’s book makes no effort to do this informally as he is totally preoccupied with the unfairness of the trial—permanently suspended because of Milosevic’s death—and with the abuse of Milosevic’s rights as a defendant throughout the court proceedings in The Hague.
The attempted application of international criminal law to political leaders during the 1990s represents a revival and extension of ideas about personal responsibility for adherence to international law that were established after the Second World War at the Nuremberg and Tokyo war-crimes trials. Although these trials were sharply criticised at the time, and subsequently, as “victors’ justice”, and for their refusal to consider the criminality of war policies pursued by the Allied Powers (e.g., strategic bombing of German and Japanese cities, and the use of atomic bombs against Hiroshima and Nagasaki), the approach taken on broad legal terms at Nuremberg was unanimously endorsed in United Nations General Assembly Resolution 95, and given an enduring and authoritative form by the International Law Commission in a 1950 text generally known as the “Nuremberg Principles”. In subsequent decades, international law has definitively incorporated this Nuremberg approach, treating the Nuremberg Principles, together with the judgements themselves and their endorsement by international law scholars, as jus cogens norms, which is a lawyers’ way of conferring a special status: such rules and standards cannot be voided, or even modified, by any inconsistent subsequent governmental action, including even an international treaty that attempted to confer amnesty on alleged perpetrators. In effect, the Nuremberg Principles have remained a form of meta-law, or law above the law, that is accepted as existing in a realm beyond controversy, and yet in the real world remains problematic.
Issues of assessment do not end with the establishment of these norms. The American prosecutor at Nuremberg, Justice Robert Jackson, famously insisted in his closing statement that the authority and validity of the Nuremberg Judgement would be tested in the future by whether the governments of those sitting in judgement would henceforth live within the framework of law relied upon to prosecute, convict, and punish the Nazi defendants. The great German philosopher, Karl Jaspers, in his important book published shortly after the Second World War, The Question of German Guilt, argued along lines similar to those of Jackson, suggesting that the authority of the Nuremberg process depended on the future willingness of the victors to abide by the same standards as had been used to assess the guilt of the German defendants, and to hold their political leaders and military commanders accountable by reference to these same Nuremberg standards. I have previously referred to this criterion of assessment as the “Nuremberg Promise”, and argued that it has not been kept by any of the countries whose representatives sat in judgement at Nuremberg, that is, the United States, Russia (formerly the Soviet Union), the United Kingdom, and France. And so the shadow of an unrepentant victors’ justice is cast upon the recent series of undertakings designed to hold political leaders criminally accountable, including those of the former Yugoslavia.
As a result of these various developments there persists an unresolved juridical tension that helps us understand divergent responses to the Milosevic trial process. On the one side are those who believe that international law advances incrementally, and must accommodate itself to the realities of world politics. The most relevant of these realities is that powerful states and their officials are essentially exempt from any obligation to apply international criminal law to themselves, including its most fundamental precepts as embodied in the Nuremberg Principles and the Genocide Convention, and recently given an institutional form in the International Criminal Court, established in 2002. The other view is exemplified in the inspirational remark delivered by the then secretary-general of the United Nations, Kofi Annan, when visiting the ICTY in 1997: “[I]mpunity cannot be tolerated, and will not be. In an interdependent world, the rule of law must prevail.” This expression of faith in the universalistic logic of liberal legality seems misleadingly oblivious to impinging geopolitical reality. Despite Mr Annan’s observation, leaders of large states are almost certain to continue to enjoy what amounts to unlimited de facto “impunity” with respect to their commission of crimes of states. In contrast, leaders of weaker and more vulnerable states—for instance, those defeated in international wars or by domestic challenge—have since the end of the Cold War increasingly been held subject to criminal prosecution, especially when, as with the former Yugoslavia, this serves the larger purposes of the geopolitical masters of world order.
This new wave of initiatives implementing the Nuremberg idea definitively emerged in the context of the break-up of the former Yugoslavia. UN Security Council Resolution 827 established the ICTY in 1993, and a year later a parallel tribunal was set up charged with prosecuting indicted individuals associated with the Rwanda massacres of 1994. This dynamic culminated in the prosecution of Milosevic, but was reinforced by other international events, perhaps most notoriously the prosecution, conviction, and execution of Saddam Hussein on 30 December 2006 while Iraq was the scene of daily political violence and occupied by an invading army. Both these trials were intended to give a legal seal of approval to the earlier demonisation by the US government of political leaders who had the personal misfortune of also being on the losing side of an international struggle.
The two trials represented differing approaches to the imposition of criminal responsibility on heads of state and reflected the underlying geopolitical circumstances. In the case of the former Yugoslavia, there was a reliance on an international procedure that was overly influenced behind the scenes by the United States, as the atmosphere in Serbia was far too nationalistic to have risked prosecution in Belgrade. In contrast, Saddam Hussein and his accomplices were the enemies of those Iraqis who had been working with the American occupiers in Baghdad, and so it was quite feasible to achieve the desired result by situating the criminal process in Iraq. And, indeed, the more vengeful outcome could be achieved, as the Iraqi prosecutors had no compunction about imposing the death penalty, which would not have been acceptable had the trial been organised under international auspices. In both instances, the judicial proceedings were seriously flawed, but in different respects.
Perhaps it is too cynical, and even inaccurate, to dismiss altogether Kofi Annan’s intolerance of impunity across the board. Civil-society initiatives do attempt in extreme circumstances to challenge the geopolitical equation by bringing their weight to bear by judging the behaviour of leaders of strong countries, particularly the United States, in the court of public opinion, embodying global civic conscience. This was the outcome, for instance, of the World Tribunal on Iraq held in Istanbul in 2005, finding George W. Bush, Dick Cheney, and other American and British political leaders responsible for the crimes associated with launching an aggressive war against Iraq and continuing an unlawful occupation of the country using a variety of tactics, weapons, and practices that violate international humanitarian law. Such an outcome in civil society has no enforcement potential, and at most poses a symbolic challenge to great-power impunity, but it is a challenge that might influence the future perceptions of political leaders, and even on some occasions the behaviour of domestic courts. American leaders such as Donald Rumsfeld and Henry Kissinger now seem wary of travelling to certain European countries for fear of being detained, and then indicted or extradited for prosecution. In other words, impunity exists, but it is no longer absolute, nor can its limits be fully ascertained in advance.
Another dimension of this upsurge of interest and activity in holding leaders to account resulted from the 1998 detention for extradition of Augusto Pinochet, and subsequent extended litigation, culminating in a series of decisions in Britain’s highest court, the Law Lords of the House of Lords. Pinochet was the former president of Chile, and was being charged with a variety of crimes of state in a Spanish domestic court. This effort to pursue Pinochet was an example of implementing the Nuremberg approach via reliance on national courts, and is commonly discussed under the rubric of “universal jurisdiction”, which holds that any court anywhere has the authority to prosecute someone properly indicted regardless of where or when the crimes were committed and even if none of the victims was of the same nationality as the prosecuting court. The British tribunal did finally conclude that Pinochet should be extradited to Spain to face charges of torture, but the order was never carried out as the Chilean leader was declared by the Foreign Office to be medically unfit to stand trial, and was sent back to Chile. As Chilean courts concluded that Pinochet was fit enough to stand trial in Chile it was never clear whether the British action was politically motivated so as to avoid diplomatic friction and preclude a threatening precedent, or whether it resulted from the good-faith recommendations of medical examiners.
The prosecution of Milosevic must be evaluated against this confusing and incoherent background. The underlying dilemma is this: the current viability of international criminal law is seriously compromised by the selective application of the law, or more simply, by double standards. An elementary principle of justice is that equals should be treated equally. This is not presently possible via the intergovernmental criminal-justice procedures now available. At the same time, there have been terrible atrocities associated with the official behaviour of leaders of smaller states who are not protected by stronger states (with regard to this latter point, Israeli officials enjoy the same impunity as do American officials). The political climate exists to pursue some such leaders. Should this be done, given the inability to go after the leaders of major sovereign states, or to treat equally the perpetrators of such crimes?
The case of Milosevic is particularly interesting if approached from this perspective. The sour smell of geopolitics hung over the entire proceedings, as Laughland convincingly demonstrates. Milosevic was the first sitting head of state ever indicted by an international tribunal, and this occurred in the midst of an unlawful NATO war being conducted against Yugoslavia—that is, a non-defensive war that lacked a mandate from the UN Security Council. To prosecute Milosevic was undoubtedly appealing to the NATO countries as it served to vindicate their war effort, and since the ICTY was almost entirely funded by NATO countries, especially the United States, there were certainly grounds for suspicion. Laughland emphasises this underlying reality, and connects it with a number of other expressions of an anti-Milosevic bias, including the following:
● the trial’s going ahead despite strong evidence that Milosevic was seriously ill, a contention given added weight by his frequent collapses during the proceedings and his death before they were brought to a close;
● the failure to declare a mistrial when the presiding British judge resigned for health reasons;
● the refusal to allow Milosevic to validate his behaviour by presenting evidence that NATO was guilty of aggression and war crimes against his country;
● the interference with Milosevic’s insistence on defending himself without a court-appointed defence counsel;
● the frequent holding of closed sessions over the objection of the accused that doing so concealed awkward elements of the prosecution’s case;
● the granting to the US government of the right to review and even censor sensitive testimony on grounds of its national interest.
These were outrageous departures from proper judicial practice, and are especially serious failings in a criminal trial in which the accused is subject to possible long-term imprisonment and to the humiliation of conviction for massive crimes against humanity and genocide.
But were these flaws so serious as to invalidate the whole idea of a trial against Milosevic, or even to justify Laughland’s title, Travesty? Or, put more positively, did not the available evidence support indictment, prosecution, and conviction of Milosevic if the entire international criminal proceeding had been properly framed and conducted? To reach a conclusion one way or the other would necessitate an inquiry into the factual foundations of the case against Milosevic, and the importance of repudiating the kinds of behaviour that he seemed responsible for fomenting and funding. Laughland fails to undertake such an inquiry, and as a result tells only half, or possibly a quarter, of the story that needed to be told.
There are reliable accounts of the role of the Belgrade regime that do establish, on the basis of abundant evidence, the personal responsibility of Milosevic and his subordinates for the terrible atrocities unleashed in Bosnia. Similarly well-established is his being instrumental in kindling the sort of Serbian ultra-nationalism that set in motion a train of events in Kosovo that led to the commission of further atrocities and caused genuine apprehension throughout most of Europe that, in the aftermath of Bosnian ethnic cleansing, a new cycle of genocidal policies directed at the Albanian Kosovars was imminent. It was this atmosphere in 1999 that set the stage for the NATO war and the flawed indictment of Milosevic. The factual record so damaging to Milosevic was to some extent compiled and presented by the ICTY prosecution, but can also be found in parallel ICTY proceedings against other defendants, and perhaps most authoritatively in the majority opinion of the 2007 World Court decision in the case of Bosnia-Herzegovina v. Serbia.
It remains true that Milosevic’s side of the story needs to be heard: the German-led European effort to encourage the break-up of Yugoslavia after the Cold War; the Belgrade government’s right under international law to use force to sustain the territorial integrity of a sovereign state; the commission of atrocities against Serbs in Bosnia, and especially in Croatia, which aroused almost no international concern; the deliberate effort by the Kosovo Liberation Army to provoke an international intervention through a campaign of terrorism; and the United States’ avoidance of diplomatic alternatives to war in the period leading up to the NATO air attacks in 1999. Laughland includes some of this material, but not systematically or in a form that commands respect, and not balanced by discussion of Milosevic’s well-evidenced culpability. Such a necessary book remains to be written.
In the end, Laughland does indirectly raise the important question of whether the Milosevic trial served in any way the cause of international justice. I remain uncertain as to how to answer that question, but I am definitely not satisfied with Laughland’s categorical “no”, echoing an equally one-sided foreword by the former US attorney-general, Ramsey Clark. Unlike the defendants in the show trials of the Soviet Union, Milosevic was not a sympathetic character who was being offered up as a sacrifice on the altar of power. At the same time, to allow geopolitical pressures to orchestrate and deform a criminal prosecution of any defendant, however horrific his behaviour, is to cheapen and discredit the Nuremberg legacy (even acknowledging its original flaws). Striking this balance requires the exercise of judgement. My own view is that in the case of Milosevic the usefulness of a prosecution and the documentation of his criminality were worthwhile despite the defects of the proceedings, while in the case of Saddam Hussein the defects so overshadowed the merits of prosecution as to make the whole undertaking a definite setback for the cause of international criminal justice. It is a pity that Laughland did not use his considerable journalistic skill to plant such questions firmly in readers’ minds, rather than offering a lightweight polemic that is more annoying than illuminating.
