LONDON – The trial of Slobodan Milosevic, the former strong man of Yugoslavia, set to open in The Hague next week at the International Criminal Tribunal for the Former Yugoslavia, may raise as many questions as it answers. It is not just the double standards of the United States in being the prime instigator of this trial while it refuses to put itself under the writ of the soon-to-be International Criminal Court established to try all crimes against humanity, but also the many underhand and compromised methods used by the Western powers in an attempt to placate the demons of Belgrade during the civil wars of the 1990s.
Yet the trial is a major marker in the development of international jurisprudence. After the success of the Nuremberg and Tokyo trials that convicted Nazi and Japanese war leaders, and were conducted despite Churchill’s initial hostility who wanted them just to be taken out and shot, the notion of international jurisprudence flourished for an all too brief a period. The Cold War made this kind of cooperation impossible and the development of international law was put into a deep freeze, as were so many of the bold, fresh ideals of the new United Nations.
Fifty-five years later in the wake of the Pinochet affair and with Milosevic about to be tried, it seems the world is taking a fresh look. The media is primed to take on board international war crimes as a serious issue. Pinochet’s tangle with British justice commanded enormous coverage, despite the fact that his crimes were committed almost a generation ago. Milosevic and Osama bin Laden, the war criminals of our own age, are villains no one can ignore.
Nevertheless, it is clear that if the Yugoslavia war crimes court were to be created today Washington would probably veto the attempt. The 1990s in retrospect were a golden age of international legal improvisation when President Bill Clinton was determined to lead the charge to create a way, acceptable to a large UN majority, of dealing with the punishment of crimes against humanity. Yugoslavia and Rwanda by a unanimous vote of the UN Security Council were given their own ad hoc war crime tribunals. The latter has already convicted of genocide an ex prime minister of Rwanda, Jean Kambanda, and the former has sentenced a slew of lower level functionaries.
In Clinton’s mind- as in that of many of his colleagues around the world- these tribunals soon became but the first step towards an International Criminal Court that could try crimes against humanity wherever they occurred.In 1998 the statutes of the International Criminal Court were agreed and, subject to being ratified by 60 nations, the Court will become a permanent feature of the judicial landscape. Although after a long internal battle, Clinton signed America’s name to the creation of the Court he was outmanoeuvred by a Pentagon-led campaign that sought quite publicly to insist that the U.S. did not take any steps towards ratification.
Now the Bush Administration has made plain its total opposition. It is backing an amendment proposed by Republicans in Congress that breaks all ties to the tribunal, forbidding all Americans from cooperating in any way with the Court. It authorizes “any necessary action” to free U.S. soldiers handed over to the Court and refuses military aid to countries that ratify the treaty (unless they be a NATO partner). Some commentators have suggested that if America decides to fight the creation of the Court in a determined way it could end up scuttling it, frightening away enough countries from ratification. Others believe that the European Union, not least Britain whose prime minister, Tony Blair, has devoted enormous energy to pushing forward the prospects of the Court, will mount a major counter offensive. It could well lead to the greatest transatlantic row of all times.
For the present Mr Bush has no choice but to allow the Yugoslav court to continue its business. An American judge sits on the court- alongside a Chinese colleague- and not a word is said to challenge the bench’s impartiality. And only last week the American Embassy in Sarajevo, the Bosnian capital, plastered the city with posters offering up to $5 million for information leading to the arrest of the wartime Bosnian Serb leader Radovan Karadzic and Ratko Mladic, his senior general, which suggests that Washington’s left hand is still engaged in the pursuit in international justice while its right seeks to smash the concept.
As the trial proceeds over the next two years, Washington is going to find it hard to answer the question “Why stop here?” Although the International Criminal Court cannot work retrospectively it will inevitably be pointed out that if the Court had been up and running two decades ago it might not only have been able to deal with Yugoslavia and Rwanda but also with Jean-Claude Duvalier of Haiti, Idi Amin of Uganda, the henchmen of the late Pol Pot in Cambodia, Mengistu of Ethiopia and Suharto of Indonesia. Indeed, it might have had some effect on deterring the more recent atrocities in Yugoslavia and Rwanda. (There is some tantalizing intercept evidence from 1993 that suggests that the proposal for a court gave pause to some of the Serbian commanders- until they realized that any such tribunal would take years to establish.)
Yet the Bush Administration’s determination to handle itself the trials of Al Qaeda members, even bin Laden himself, if captured, suggests that it is set on going its own way. Never mind the outrage in the Muslim world, never mind the deep reservations in Europe, it is determined to plough its own furrow. But has it truly weighed the cost? The Milosevic trial is going to bring the argument home.
I can be reached by phone +44 7785 351172 and e-mail: JonatPower@aol.com
