18-7-2005
International Criminal Tribunal for the Former Yugoslavia (ICTY)
LAWRENCE R. DOUGLAS
Slavenka Drakulić
THEY WOULD NEVER HURT A FLY
War criminals on trial in The Hague
192 pp. Abacus. Paperback, £ 8.99
US: Penguin. $ 8.90. 0 14 303542 8
Pierre Hazan
JUSTICE IN A TIME OF WAR
The true story behind the International Criminal
Tribunal for the former Yugoslavia
Translated by James Thomas Synder
288 pp. Texas A & M University Press. Paperback.
$ 18.95; distributed in the UK by Eurospan. £ 12.95
1 585 44411 1
In his first court appearance in The Hague, Slobodan Milosevic assumed a characteristic pose. When asked by the presiding judge, Richard May, whether he would like to hear a formal reading of the indictment, the former President of the Federal Republic of Yugoslavia snapped, “That’s your problem”. The comment sounded equally defiant and misplaced. After all, Milosevic seemed like the one with all the problems. He stood before the court not as a political leader wielding the power and prerogatives of state office, but as an indicted war criminal accused of the gravest breaches of international law. Consigned to a detention facility in Scheveningen, a northern suburb of The Hague, Milosevic faced the humiliation of being the first former head of state to stand trial before an international court. If condemned, he would likely spend the rest of his life in prison.
And yet Milosevic’s contemptuous quip has proved oddly prescient. His trial has recently entered its third year, with at least another year of proceedings already scheduled. Though the accused’s health woes — Milosevie suffers from high blood pressure and a heart condition — have led many to wonder whether he will survive his trial, it was Richard May who was solemnly buried last summer, after succumbing to brain cancer. Patrick Robinson, a soft-spoken and well-meaning jurist from Jamaica, assumed the mantle of presiding judge after May’s death, but has proven no more successful in commanding respect from the accused who serves as his own defender. An effort this autumn to force Milosevie to cede control of his case to a team of professional lawyers was rejected by the Appeals Chamber of the Hague court as an unreasonable restriction of the accused’s right to mount a pro se defence. And so Milosevic continues to vex the court with his tiresome harangues, contemptuous quips and annoying, though not unresourceful, procedural challenges.
The trial of Slobodan Milosevic is not, of course, the only prosecution to come before the International Criminal Tribunal for the Former Yugoslavia (ICTY). In fact, the ICTY soldiered bravely through its early years without any realistic prospect of bringing the leading perpetrators of the Balkan conflict to justice. Created by a resolution of the United Nations Security Council in 1993, the ICTY was to be the first international criminal court established since the end of the Second World War. (In 1994, the UN created a second such court to deal with the Rwandan genocide.) Like the International Military Tribunal that presided over the trial of the major Nazi war criminals in Nuremberg half a century earlier, the ICTY was fashioned as an ad hoc court: it would exist only for a specified period — jurists now frequently mention 2010 as the year for closing shop — and would have jurisdiction over only a specific range of crimes — namely atrocities committed m the former Yugoslavia after 1991.
The ICTY is housed in the former headquarters of an insurance concern in the Churchillplein in the Hague, and its early years were devoted to — some would say wasted on — the prosecutions of low-level perpetrators. When Serbia, bowing to enormous economic pressure brought to bear by the United Stales, delivered Milosevic to the Hague in 2001, the ICTY instantly achieved the kind of high visibility that it had lacked since its inception. Now with a staff of over 1,200, and an annual budget in excess of $250 million, the ICTY stands as a substantial international institution; and yet the glacial pace of the Milosevic case, when coupled with the size of the court and the Costs of its maintenance, have led many from jurists to journalists, from politicians to pundits — to ask whether this experiment in international justice has been worth it.
They Would Never hurt a Fly: War criminals on trial in The’ Hague by Slavenka Drakulić, and Justice in a Time of War: The true story behind the International Criminal Tribunal for the Farmer Yugoslavia by Pierre Hazan, are engaging attempts to grapple with This question. Drakulić, a prominent Croatian journalist and novelist, assesses the Tribunal’s success only indirectly. In the first instance, her book attempts to understand the mindset of the perpetrators. In its pages we encounter many of the types made familiar in the vast literature of the Holocaust: the situational sociopath, the willing executioner, the power-hungry opportunist, the remorseful accessory.
Though hardly original, Drakulić’s characters remain fascinating, perhaps because it is impossible to grow immune to accounts that demonstrate the ease with which ordinary people perpetrate the most astonishing atrocities. Drakulić’s guide in this study is not Hannah Arendt, whose notion of the “banality of evil” has been turned into something of a cliché, but Christopher R. Browning, whose pioneering study, Ordinary Men, showed the alacrity with which good neighbours could become efficient killers. Drakulić’s approach is not as scholarly as Browning’s; she imagines her subjects’ thoughts (regarding the pleasures that a particularly “bestial” Bosnian Serb guard, Goran Jelisic, derived from fishing, she writes: “This was the best thing about fishing: you could forget about the world, forget even about yourself… It was as if you didn’t exist ), and betrays a fascination with the pathetically coquettish wardrobe of Mira Markovic, Milosevic’s wife.
But on the whole, her sketches are sharp. Most remarkable is her description of the daily life of the inmates at the Scheveningen detention facility that houses all the indicted war criminals from the Balkans. Here we meet Croats, Bosnians, Kosovo Albanians and Bosnian Serbs — men who shortly before were zealously committing he most outrageous atrocities against their ethnic rivals, and yet now find fraternity, like students stuck together in a depressing dormitory. Her portrait of the court is also vivid, but for other reasons altogether. Early on, Drakulić describes a day spent observing the Tribunal — a day fixed in her memory not because of its melodrama, hut because of its dullness. Her story recalls Rebecca West’s famous characterisation of Nuremberg as a “citadel of boredom”.
To her credit, however, Drakulić suggests that such boredom might be an achievement rather than a shortcoming of the court. Far from succumbing to the spectacular nature of the proceedings, the Tribunal bas managed to exert legal control over lawless behaviour. II represents the victory of law’s sobriety over war time atrocity. This is no mean feat — and yet high-profile perpetrator trials are asked to do more than merely dispense dry justice. If we listen to the clamourings of jurists, human rights advocates and scholars, we also expect such trials to clarify the terms of contested history, honour the memory of victims, and contribute to reconciliation in regions riven by horrific conflict.
Whether these expectations are fair can be debated; in any case, they certainly complicate the task of international trials and, as Pierre Hazan suggests in Justice in a Time of War, they make the task of measuring legal success difficult. Hazan, a journalist for the Paris-based Libération, has covered the ICTY for years and the story of the Court’ s founding makes for gripping reading, not least because it is told in Manichaean terms. The heroes of Hazan’s tale are a handful of international jurists and diplomats committed to bringing Balkan war criminals to justice. Against them are pitted the likes of the former British Foreign Secretary, David Owen, and the former French Defence Minister, Alain Richard — the dark princes of realpolitik prepared to make peace with monsters such as Milosevic and Radovan Karadzic. It is a tale of constant frustration — in Hazan’s pages, justice is continually “sacrificed on the altar of peace”— ending in the belated and incomplete triumph of law. The analysis is certainly simplistic: Hazan accepts as self-evident the maxim that there can be no meaningful peace made with former thugs, and yet the remarkable rehabilitation of Libya’s Colonel Qaddafi suggests otherwise. But however flawed the analysis, Hazan vividly depicts the powerful forces allied against the Court. The United Stales originally embraced the ICTY less out of enthusiasm for international law than as a cover for its unwillingness to intervene militarily in the Balkan conflict; Britain opposed it as a potential roadblock to a diplomatic settlement; and France feared that supporting the Court would endanger the safety of its peacekeepers in the region. Once officially created, the ICTY was left miserably underfunded and understaffed by the UN, and dependent on feuding allies for financial and logistical support. With limited powers of evidence-gathering and no police force to execute its arrest warrants, the Court had to rely on the grudging cooperation of regional peacekeepers. (When France agreed to cooperate with the Court, it did so not out of principle, but to stop Washington taking full credit for any possible successes that the Tribunal might achieve.)
One closes Hazan’s book less with a sense of the ICTY’s shortcomings than with admiration for its many accomplishments, given the forces stacked against it. Unfortunately, many of these achievements receive short shrift in Hazan’s book, for he passes quickly from the early battles over the Court’s creation strait to the Milosevic trial. But among the Court other notable cases that Flazan ignores the prosecution of Dragoljub Kunerac, a commander of a special volunteer unit of the Bosnian Serb Army, for mass rapes that occurred in Foca (this case led to the recognition of rape as a crime against humanity); and the trial of Radislav Kristic, deputy commander of the Drina Corps, for the massacre at Srebrenica.
When it comes to the Milosevic trial, Hazan writes with insight about the myriad problems and mistakes that have plagued the case. The Court, concerned to demonstrate its legitimacy and even-handedness, strays too far in the direction of accommodating the accused, and so damages its dignity and control over the proceedings. The defendant, far from won over by the Court tolerance, exploits it to denounce the ICTY a NATO lackey. The prosecution’s hopes of galvanizing international attention are frustrated by endless debates over procedure, just as it learns of the difficulties of speaking to those in region from an antiseptic international court removed from the world of the accused’s crimes.
Meanwhile, Milosevic’s belligerent cross-examination of witnesses leaves victim groups appalled, while his defiance towards the Court wins him grudging respect back home. Finally, the Court must labour against the knowledge that the nation most responsible for its creation and continued existence — the United State is shamefully working to undermine its new permanent sister institution, the International Criminal Court, also housed in The Hague few miles away.
Given the problems that have plagued Milosevic prosecution, it is hardly surprising that Hazan ends his book on a critical note. Specifically, he doubts whether such international trials can actually contribute anything to the elusive goal of reconciliation, a process he associates with a “religious rite” such as the granting of pardons. Here, however, Hazan misconstrues the meaning of reconciliation as it emerges from the legal process. Trials do not contribute to the kind of reconciliation offered by a marriage counsellor. The reconciliation made possible by trials is of an intransitive kind: trials help to reconcile victim groups to the sufficiency of a legal response to their pain, and in so doing, serve to quiet the call for vengeance.
And yet trials cannot achieve this on their own. This is the ultimate insufficiency of an analysis that pits the interests of justice against those of a political settlement. For the two must not be treated as antagonists. The turn to law may be a critical, perhaps even a necessary, response to atrocities. But it is never sufficient. Stability will come only through acts of legal and political will.
Finally, the success of such gestures may only be adequately measured some years later. At the time of its staging, the Nuremberg trial aroused utter indifference in the vast majority of Germans. In the 1950s, Germans viewed the trial with contempt, as an exercise in victors’ justice. (In particular, Germans vilified Nuremberg for treating “aggressive war” as an international crime.) Now, however, the trial is generally viewed in Germany with respect — both as an event that prodded Germans to a collective reckoning with their troubled past, and as a vital contribution to the developing body of international law. And today it is German jurists who have taken the lead in codifying aggressive war as a crime to be judged before the fledgling International Criminal Court.
Last Updated: 12:01am GMT 25/02/2007
Neil Tweedie reviews Travesty: the Trial of Slobodan Milosevic and the Corruption of International Justice by John Laughland
In Alice in Wonderland, the Queen of Hearts shouts: "Sentence first, verdict later!" The brand of justice meted out by the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) was not quite in that league but, according to this provocative book, it came close, and no more so than in the trial of Slobodan Milosevic.
When Milosevic, the former president of Yugoslavia, was found dead from heart failure in his cell in the UN detention centre at Scheveningen near The Hague on March 11 last year, it brought to an end the most protracted criminal trial in the history of international law.
The man characterised in tabloid shorthand as the Butcher of the Balkans had made his first appearance before the ICTY on July 3, 2001, when Saddam Hussein ruled in Baghdad and the Twin Towers still stood. He was accused of war crimes and crimes against humanity committed in Kosovo in 1999; and was later to be indicted for similar offences committed during the war in Croatia in 1991, and the ultimate crime, genocide, during the Bosnian war of 1992-95.
It was the beginning of an international Jarndyce v Jarndyce catalogued here with relentless precision by John Laughland, a journalist and academic who remains a vocal critic of what he sees as an illegitimate and biased exercise in victors' justice.
He uses statistics to serve his point. When the trial was abruptly terminated last year, four years after its start in February 2002, transcripts totalled almost 50,000 pages. Nearly 300 witnesses had testified, and filings, exhibits and other documentation ran to 1.2 million pages.
It would have taken one person - reading at the rate of one page per minute, seven days a week, 365 days a year - more than seven years to get through it all. Laughland states: "The Milosevic trial has never been read by any single individual, and the trial was therefore Kafkaesque in the true sense of the term."
Laughland argues that the ICTY was, as Milosevic repeatedly protested, a "false tribunal", having been created not by international treaty but by diktat of the UN Security Council. Behind it were the US and its allies in Nato who, he claims, goaded Serbia into war over Kosovo. The tribunal and its "corrupt legal culture" was an expression of the belief, dominant in the 1990s, that sovereign nations deemed "rogue states" needed to be reined in by supranational (ie American) power.
The ICTY was a law unto itself, manned by politically appointed judges, many of dubious legal expertise, who made up the rules as they went along. Procedure was altered with gay abandon to meet the demands of securing the maximum number of convictions from a pool of mostly Serb defendants. Witnesses were allowed to give evidence while hidden from the defendant, or in writing and without cross-examination, and the court record could be censored to conceal sensitive evidence such as that provided by Western intelligence agencies.
And yet, the prosecution, overseen by the Swiss-Italian lawyer Carla del Ponte, and headed in court by the British barrister Geoffrey Nice QC, appeared incapable of landing a killer punch. They insisted on linking the three Yugoslav wars in one indictment, portraying Milosevic as a murderous latter-day Bismarck intent on creating a Greater Serbia cleansed of inconvenient minorities. As one lawyer in the trial put it to me at the time: "It's like some grandiose opera rather than a case."
As the trial progressed, largely ignored by a media occupied by the aftermath of September 11, the thesis came apart in the prosecution's hands, until it was abandoned. The Americans learnt the lesson of such folly in the trial of Saddam Hussein, insisting that it remained a "domestic" hearing based on provable sample atrocities. Even more of a kangaroo court than the ICTY, it at least got its man.
But there are passages in this book that ring hollow. In his eagerness to shred the ICTY, Laughland finds himself sanitising Milosevic's past. You will find no mention of Arkan, or discussion of the movements of bodies from Kosovo to Serbia to conceal them from investigators, or analysis of Milosevic's position in the Serb power structure.
The author gives no evidence for his contention that Nato killed as many people in Kosovo as the Yugoslav army and paramilitaries. He puts the number of Kosovan Albanians murdered by Serbs at fewer than 2,000 - a fifth of the number cited in a detailed study by the US group Human Rights Watch. Some 70,000 Kosovans are estimated to have fled the province to escape the pogroms.
He buys the Belgrade line and attributes the Kosovo exodus to Nato. The 200,000 people killed in Croatia and Bosnia hardly merit a mention, either.
In the end, one worries about his perspective. Laughland touchingly relates how Milosevic was buried by the tree under which he first kissed his future wife Mira Markovic. Given the awfulness of both, and the misery they undoubtedly helped inflict on powerless people, it is rather difficult to shed a tear.
Read on Slobodan Milosevic, here