The Spectator

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International law is an ass
John Laughland

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 re-started. 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
politicians 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 Pйtain 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, Lйon 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.