The dilemmas of political justice
The continued use of war crimes tribunals as a means to international order corresponds with the rise of liberal democracy, most notably British and American, to the centre of world power. With the exception of Churchill's desire for the extra-judicial killing of Nazi leaders, it has always been liberal states, ideologically tied to the rule of law, that have advocated judicial process for the vanquished. With the inception of the International Criminal Tribunals for Rwanda and the former Yugoslavia, war crimes trials have gone beyond being an extraordinary measure for exceptional times. Recent US back-pedalling over the costs of the Hague notwithstanding, they have become an established strategy of liberal international governance.
'...economic, cultural and political independence...is subject as never before to the whim of the powerful.'
Accordingly, the dilemma for those who would think objectively about the Hague Tribunal goes beyond the traditional one of the moral ambiguity of 'victor's justice'. The notion of 'political justice': the use of legal institutions and processes to create, sustain and legitimate a particular political order perhaps offers a better framework. Whatever the legal quality of the Hague process (a matter that has divided experts), Slobodan Milosevic's indictment and the institutional framework in which he will be judged reflect the political interests and visions of those sponsoring the Tribunal, the same powers against which his final battles were fought. Their efforts to globalize law will only succeed through popular perception of its legitimacy, perceptions that are intimately tied up with the political equity of the international order.
It is here, in the political arena, that the conflict between a wider justice and the interests of those with the power to pursue it is being felt. The Hague Tribunal's lasting legacy in international affairs will itself, in time, become the subject of judgement. The terms of that judgement will far exceed the particular question of Slobodan Milosevic's guilt.