The Hague tribunal after Milosevic

Anthony Dworkin
14 March 2006

The death of Slobodan Milosevic on 11 March 2006 during the final stages of his marathon trial has prevented a verdict in the case, but it does not mean that the trial itself was a failure. It would be wrong to write off this landmark prosecution – the first time a head of state has had to answer to an international court for crimes he may have committed while in office – just because the defendant happened to die before his guilt could be confirmed. Indeed, amidst the disputed circumstances of his demise, it seems almost certain that Milosevic would still be alive had he not chosen for whatever reasons to manipulate the medical regime designed to keep his blood pressure under control.

However, the abrupt end of a court case that was widely described at its outset as the most important in Europe since the second world war – but that has proceeded since then amid increasing criticism – has inevitably prompted a stocktaking. The Milosevic trial was the marquee event of the United Nations war-crimes tribunal for ex-Yugoslavia. Its abandonment at this stage of proceedings is an undisputed setback for the court, and gives new force to the question of whether the tribunal's achievements outweigh the huge sums of money it has cost.

Anthony Dworkin is the executive director of the Crimes of War Project, a collaboration of journalists, lawyers and scholars dedicated to raising public awareness of the laws of war and their application to situations of conflict. His writing has been published in Prospect, the Times Literary Supplement, the New Statesman and the Boston Globe.

Also by Anthony Dworkin in openDemocracy:

"The trial of Milosevic: global law or war?" (February 2002)

"The trials of global justice" (June 2005)

A difference made

To assess the Yugoslav war-crimes tribunal fairly, it must be seen in context. The court was a judicial experiment, set up in 1993 almost on the nod by the UN Security Council as an alternative to active military intervention in Bosnia. (Similarly, the Rwandan war-crimes tribunal was set up the following year as an act of expiation by the Security Council for not having done anything to halt the genocide there while it was happening.) In contrast to its predecessors at Nuremberg and Tokyo, the Yugoslav tribunal was a court without any defendants in custody, established to sit in judgment on crimes that were still taking place.

This meant that the initial prosecution strategy was dictated by the simple question of who the court could get its hands on. The first defendant to go to trial was Dusko Tadic, who had been a part-time guard at the Omarska detention camp in northern Bosnia. Tadic was undeniably a brutal thug, but he made an incongruous figure to bear the full weight of global justice. However, in succeeding years, many people of genuine significance have been brought before the dock.

The Bosnian Serb general Radislav Krstic was found guilty of genocide for the 1995 Srebrenica massacre, though his conviction was reduced on appeal to one of "aiding and abetting" genocide. In 2002, the former president of the Bosnian Serbs, the "iron lady" Biljana Plavsic, pleaded guilty to crimes against humanity; she admitted there had been a plan of "forced ethnic separation" in Bosnia. Her colleague Momcilo Krajisnik, former president of the Bosnian Serb assembly, is currently on trial. The tribunal recently gained custody of the leading Croat general Ante Gotovina, as well as several of the Bosnian Serb officers responsible for the Srebrenica massacre.

Nevertheless the two men seen as most responsible with Milosevic for crimes against humanity and genocide in Bosnia – the Bosnian Serb political leader Radovan Karadzic and military leader Ratko Mladic – have so far evaded justice. The death of Milosevic makes their capture all the more essential if the tribunal's work is not to seem unfinished.

It is often said that the tribunal has had only limited success in the primary purpose for which it was established: promoting peace and reconciliation in the region. The proceedings in The Hague may not yet have had a big impact on popular perceptions in the Balkans, but the court has made a difference in one way that is not always appreciated. Simply by removing the worst offenders from the scene, the war crimes tribunal has lifted the shadow of violence from many communities and made it easier for refugees to return home.

A challenge unwon

The tribunal's proceedings will also provide an incontrovertible historical record of the many brutalities of the Yugoslav wars that may eventually be seen as objective even by people in the countries involved. But the use of a courtroom to establish historical responsibility has its drawbacks. One reason that the Milosevic trial went on so long is that prosecutors hoped to do justice to his central role in the Balkan catastrophe through a comprehensive indictment – despite the problems of connecting him directly to many of the specific crimes involved.

Still, this was by no means the only reason for the trial's extraordinarily slow pace. Defending himself, Milosevic dragged out the proceedings through lengthy – often bullying and irrelevant – cross-examinations. And of course his poor health (along with the death of the presiding judge) caused repeated postponements. Trying a determined and resourceful defendant who does not accept the basic validity of the court is a problem with no easy answers, but future prosecutors looking back at this case may take a somewhat more robust line.

Also in openDemocracy after the death of Slobodan Milosevic on 11 March 2006:

Misha Glenny, "Milosevic's last victory"

Tom Gallagher, "Understanding Slobodan Milosevic: between the cold war and Iraq"

Dusan Velickovic, "Milosevic and I"

In any case, the Yugoslav war-cimes tribunal is winding down. Under pressure from the United States, prosecutors have agreed a "completion strategy" that aims to have all trials finished by 2008 (barring any proceedings against Karadzic or Mladic). In its place, local courts in the Balkans have been asked to take up the task of trying the region's remaining war crimes suspects.

The Yugoslav tribunal was the prototype for a wave of institutions that have established international justice as a fixture in world politics. Successor bodies have responded to different circumstances by pursuing different strategies. The most important is the International Criminal Court (ICC), launched in 2002. As a permanent body it can take on new cases without the start-up costs associated with a specially created tribunal like the Yugoslav court. The ICC's prosecutor, Luis Moreno Ocampo, has also said he will concentrate on pursuing those "most responsible" for the atrocities that come before him.

Nevertheless some of the challenges he will face are familiar. The Security Council has given the ICC responsibility for investigating potential crimes in the Sudanese region of Darfur. The government of Sudan rejects the court's jurisdiction, and the members of the Security Council show no sign of authorizing a military force with the mandate to seize war crimes suspects. Even as the Yugoslav war-crimes court nears its end, the challenges it has grappled with will not disappear.

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