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| What chance has the Milosevic trial got of achieving political justice? Shane Brighton reviews the precedents of war crimes trials since Napoleon, and shows how the mechanisms of the courts reflect the changing nature of conflict. |  Slobodan Milosevic arrives at the UN War Crimes Tribunal in The Hague, 2000
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Trying vanquished leaders for war crimes is not a new idea. After Waterloo the Great Powers faced the problem of what to do with Napoleon. The Prussians, whom he had militarily humiliated, advocated his summary execution. Russia, instrumental in his first banishment, tended towards his removal again to somewhere he would be unable to rally support. Under the twin pressures of public desire to see Napoleon punished and the Duke of Wellington's wish to see an honorable fate for his old adversary, Liverpool, the British Prime Minister, suggested he face trial in France. It was the vulnerability of the newly re-appointed French monarchy in the face of latent Bonapartism that stymied the legal approach and saw Napoleon's final deportation to St Helena.
'...twelve were ordered to stand trial, three didn't show up, a further three had all charges dropped...'
The Great Powers again deliberated upon the fate of a defeated enemy after World War One. A war crimes provision indicting the Kaiser and naming nearly 5,000 Germans citizens as alleged war criminals was written into the Treaty of Versailles. The German government, terrified at the prospect of public disorder and a potential communist putsch sought a compromise. The allies accepted, reducing the list to 91 to be tried before Germany's Supreme Court at Leipzig. Of these, 12 were ordered to face trial, three didn't show up, a further three had all charges dropped and the remainder received minimal sentences. The Kaiser, who had fled to Holland, was saved from extradition by the Dutch authorities although his trial in Germany before allied judges or under British jurisdiction on the Channel Islands had been proposed.
'Scant formal reference was made to the Holocaust and virutally none to the fate of Europe's Jews...'
After fierce debate in Washington, American pressure settled the matter. The International Military Tribunal at Nuremberg tried 21 senior Nazis before judges drawn from the allied nations. Of the accused, 11 were executed, seven received lesser sentences and three were acquitted. Several hundred smaller trials followed. The legal orientation of the Nuremberg Trials and their sister Tribunal in Tokyo reflected the grievances of the allies, being almost entirely concerned with prosecuting Axis leaders for 'conspiracy to wage aggressive war'. Attention to their brutality was largely limited to 'violations of the customs of war' in the form of mistreatment of allied POWs. Scant formal reference was made to the Holocaust and virtually none to the fate of Europe's Jews, although during the trials and their accompanying investigation much evidence emerged about both.
'Warring sides came to see civilian populations as strategic assets and liabilities to be defended, displaced and annihilated...'
Nuremberg's emphasis on the crime of aggressive war and by extension the sanctity of state borders makes it an ambiguous precedent for the Hague. Notwithstanding international recognition of Slovenia, Croatia and Bosnia, the Yugoslav conflict was essentially one of secession and resistance with the Serb dominated state of Yugoslavia fighting to retain first political unity and then territorial possession. As in many civil wars before it, warring sides came to see civilian populations as strategic assets and liabilities to be defended, displaced and annihilated in accordance with their war aims. The brutal suppression of the Kosovars for which Slobodan Milosevic now stands trial was again an internal affair, with the Kosovo Liberation Army, frustrated at the lack of political progress towards civil rights, fighting for secession and a greater Albania.
Far more ambiguous under international law was the NATO bombing campaign against Serbia, which lacked a UN mandate and breached Yugoslav sovereignty. Unsurprisingly, given its sponsorship by the NATO states, this has not been deemed a matter for the Hague, nor have many of those in the more co-operative states of the former Yugoslavia who might also be accused of war crimes been pursued. It is perhaps in recognition of these ambiguities that the charges against Milosevic have been widened to include crimes of genocide during the Bosnian war and crimes against humanity in Croatia. His prosecution remains far from certain and the future legacy of the Hague Tribunal can only be the subject of speculation informed by attention to the changing nature of the international order.
'...economic, cultural and political independence... is subject as never before to the whim of the powerful.'
The traditional measure of peace, an 'absence of war and military conflict amongst states' was judged no longer adequate, while 'the non-military sources of instability in the economic, social, humanitarian and ecological fields' were now deemed threats to international order. In actuality, this was little more than a formal recognition of a shift towards (frequently militarised) international interference in matters previously regarded as domestic. The selective application and questionable humanitarian outcomes of these endeavors have, for many, devalued the noble rhetorics that accompanied them.
In an era of increasing international governance, 'ethical foreign policy' and forceful pursuit of human rights, global inequality and the material conditions of the world's poorest have worsened. There is an abiding sense amongst the populations in some of the world's most volatile regions that the economic, cultural and political independence for which they are struggling is subject as never before to the whim of the powerful. In this global context, justice takes on a wider meaning than the narrow legalism of international criminal tribunals. But it is surely here, as well as in the more specific terms of lasting peace and political stability in the Balkans that the relevance and long-term effect of the Hague Tribunal will be measured.
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.
Books
Stay the Hand of Vengeance: The Politics of War Crimes Tribunals by Gary Jonathan Bass (Princetown University Press, 2000)
War and Law Since 1945 by Geoffrey Best (Clarendon Press, 1994)
Humanity in Warfare: The Modern History of the International Law of Armed Conflict by Geoffrey Best (Weidenfeld and Nicholson, 1980)
Judging War Criminals by Yves Beigbeder (Macmillan, 1999)
War Crimes Law Comes of Age: Essays by Theodor Meron (Clarendon Press, 1998)
The Keys to my Neighbour's House - seeking justice in Bosnia and Rwanda by Elizabeth Neuffer (Bloomsbury, 2002)
The Hague Tribunal [http://www.icty.org/] provides a background to the trial of Slobodan Milosevic and case by case updates.
European Journal of International Law [http://www.ejil.org/index.html] features articles, debates, responses and links on current legal issues. The site includes an archive of published features.
Published on BBC History: 2002-03-01
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