Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice

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This
is the introduction to John Laughland’s new book, Travesty:
The Trial of Slobodan Milosevic and the Corruption of International
Justice
.

Introduction

When the indictment
against Slobodan Milou0161ević, President of the Federal Republic
of Yugoslavia, was announced by the International Criminal Tribunal
for the former Yugoslavia in The Hague on Thursday, 27th
May 1999, it created an instant sensation around the world. The
indictment was published two months after NATO, the world's most
powerful military alliance, had started raining down bombs on the
small state of Yugoslavia on 24th March 1999. The bombing
campaign was to last until early June. The world's television screens
had been filled with highly emotive pictures of refugees fleeing
into Macedonia and Albania, and the Western media had been saturated
with NATO's war propaganda about atrocities being committed against
the civilian ethnic Albanian population of the Southern Serbian
province of Kosovo. The first indictment in history by an international
tribunal of a sitting head of state for war crimes and crimes against
humanity greatly bolstered NATO's cause.

Milou0161ević
was in fact only one of five Yugoslav leaders to be indicted. Since
he was the President, and since he seemed to be the central figure
in the Balkan wars which had started to rage in 1991, his indictment
and subsequent trial attracted the most attention. However, the
fact that the indictment named many of the leading political and
military officials in Yugoslavia emphasised its unique constitutional
importance. Just as the declared purpose of NATO's bombing campaign
was to overturn the existing international system — to abolish national
sovereignty as the cornerstone of international law, and henceforth
to allow military attacks on states which were said to be abusing
universal human rights — so the criminal condemnation of the entire
war policy of the Yugoslav state by the ICTY Prosecutor, and the
approval of that indictment by the ICTY judges, were clear signals
that international law would no longer be based on the principle
of state sovereignty. NATO's war and the indictment of Slobodan
Milou0161ević were therefore ideologically linked at the deepest
possible level. In fact, they were two sides of the same coin —
a state of affairs conveniently emphasised by the fact that, during
the bombing, the ICTY web site helpfully carried a link to NATO
on its home page.

The unprecedented
indictment was eventually to lead to a trial which was itself unique
by almost every measure. The Milou0161ević trial was the longest
criminal trial in history, having lasted for four years from February
2002 until Milou0161ević's death in his cell on the morning of
Saturday, 11th March 2006. Its duration contrasts with
the Nuremberg trial of twenty leading Nazis, which lasted just ten
months from 20th November 1945 to 30th September
1946. By the end of the trial, the transcripts ran to just under
50,000 pages and nearly 300 witnesses had testified. The Filings,
exhibits, documentation, DVDs and videos presented at the trial
ran to a total of more than 1.2 million pages.1
If a person sat down and tried to read all this material, reading
at a rate of one page a minute, eight hours a day, 365 days a year,
it would take him over seven years to accomplish his task. In other
words, it is an impossible task: the total amount of material submitted
in the Milou0161ević trial has never been read by any single individual
and the trial was therefore Kafkaesque in the true sense of the
term. The cost of the trial was concomitantly enormous. The budget
of the International Criminal Tribunal for the former Yugoslavia
runs at nearly US$300 million a year. There are no official figures
for the cost of specific trials but one estimate is that 20% of
the ICTY's costs went on the Milou0161ević trial, or some $20–$30
million a year for six years.

The trial
was attended by some of the world's most powerful people and many
of the major players in the Yugoslav wars. The Presidents of Croatia
and Slovenia, the former President of the Federal Republic of Yugoslavia
(Milou0161ević's predecessor), former Prime Ministers of Yugoslavia
and of the Soviet Union, the Chief of Staff of the Russian army,
the former Supreme Commander of NATO, the High Representative of
Bosnia-Herzegovina, and the EU's special envoy during the Balkan
wars all came to testify: most of their appearances in The Hague
were ignored by the world's media. Tony Blair, the British Prime
Minister, and Gerhard Schröder, the former German Chancellor,
were also called to attend for cross-examination by Milou0161ević,
but they refused to do so and the ICTY judges refused to issue subpoenas
to force them to testify. The Presiding judge, Sir Richard May (who
had stood as Labour Party candidate against Margaret Thatcher in
the constituency of Finchley at the General Election of 1979 which
brought Thatcher's Conservative government to power) died two years
into the proceedings; instead of being allowed to collapse, the
trial continued.

Milou0161ević
himself died in custody, the seventh defendant at the ICTY to have
died either in The Hague or shortly after release. He had been in
poor health throughout and yet, instead of releasing him on compassionate
grounds as the British authorities had done to General Pinochet
(after having detained him for months on the basis of an arrest
warrant issued by a Spanish magistrate), the ICTY judges used his
illness as an excuse for taking the unprecedented decision to impose
a defence lawyer on their most famous defendant. This means that,
in international law, a sick man can now be convicted on the basis
of a trial at which he has been u2018represented' by a lawyer whom he
has in fact not appointed and whom he does not instruct. He can
even be tried in absentia, as Milou0161ević himself was.
As the ICTY itself admitted, there is no precedent anywhere in national
or international law for such measures. Staff at the ICTY added
insult to injury when they alleged, after his death, that Milou0161ević
had deliberately damaged his own health by taking medicine which
had not been prescribed.

In spite of
the fact that the trial cast light on some of the most interesting
and widely-discussed events of the end of the 20th century,
the proceedings were effectively ignored by the world's media. Indeed,
many members of the public had forgotten that Milou0161ević was
even still on trial when he died in March 2006. The only partial
exceptions to this media silence came when the Prosecution announced
that some u2018star witness' was due to appear, or that some u2018smoking
gun' piece of evidence was due to emerge. In fact, neither of these
ever did. On the contrary, many of the Prosecution witnesses backfired.
Whereas supporters of international criminal justice had written
excitedly at the beginning of the trial that it was to be u2018the world's
most closely watched criminal proceeding since the trial of O. J.
Simpson,'2 in fact the media quickly
lost interest after the initial thrill of more atrocity propaganda
had worn off, and when the trial revealed that the facts involved
were far more nuanced. During the trial, most of the world's mainstream
media behaved as indulgently towards The Hague Tribunal as had human
rights activists from the Ligue des droits de l'homme who
observed the Moscow show trials in the 1930s and reported back that
they were models of due process.

Today's
journalistes engagés, so quick to issue moral condemnations
when they are of people whom everyone loves to hate, seem never
to question the procedures and philosophy of the ICTY or of u2018international
justice' in general. In fact, the rules and procedures of the ICTY
are heavily stacked against the Defence and in favour of the Prosecution.
The Tribunal is not subject to any meaningful control and, the author
of its own rules of evidence, it often bends the law and established
procedure to obtain convictions. The underlying assumption often
seems to be that u2018justice' means a guilty verdict at all costs.
In the brave new world of so-called international law, indeed, it
has become a banality for Western leaders to demonise the leaders
of enemy states, often in order to obscure the atrocities committed
by the West itself on their territory. This has led many people
in the West to think that they know that Milou0161ević was guilty
as charged, or that he was an evil man, even when they are ignorant
about the most basic facts concerning the former Yugoslavia, its
wars and the NATO attacks of 1999.

This book argues
that the trial was inherently political, and that the political
nature of the indictment made a fair trial impossible. The very
fact that the trial lasted for four years is itself indication of
an unfair trial: compare it to the guidelines laid down by the Lord
Chief Justice for England and Wales in March 2005, which say that
even the most complex criminal trials should last between three
and six months, but no longer.3 There
is unfortunately nothing new about the judicial process being abused
to further political goals. All revolutionary forces in modern history
have sought to legitimise their regimes with a symbolic murder in
the form of a trial and execution of the leader of the old regime.
The mere appearance in court of a former king is enough to show
that a new regime is in power. Such trials are anvils on which a
new political order is supposed to be forged — and they are seldom
models of due process. This is why the Milou0161ević trial's pedigree
lies in the great revolutionary trials of the past, organised as
it was to emphasise the dawn of a New World Order in international
law. NATO and the Western states needed the Milou0161ević trial
to prove that they had torn up the existing rules of the international
system and replaced it with a new globalist regime, in which the
rights and duties of states had given way to a universal regime
of u2018human rights.'

History shows
that such show trials in fact corrupt the criminal justice system.
The destruction of lawfulness, especially if carried out in the
name of morality, is a matter of the greatest concern to all of
those who are interested in that precious jewel of Western civilisation,
the rule of law. For, as Charles Stuart said as he was led to the
gallows, u2018If power without law may make laws, I do not know what
subject he is in England that can be sure of his life or any thing
that he calls his own.' The subsequent dictatorship of Oliver Cromwell
proved him right. In our own day, the u2018war on terror' has shown
how an aggressive stance in foreign policy leads quickly to an attack
on civil liberties at home. If a culture of condemnation is allowed
to pass for u2018justice,' then it will not be long before innocent
people are judicially lynched in domestic courts as well. This is
why a lawyer representing a defendant at The Hague tribunal, who
struggled against its destruction of established legal principles,
wrote in 1999, u2018We are fighting here the battles which were fought
to establish the principles enunciated in Magna Carta and the American
Constitution. Yet the stakes are much higher this time. For if we
fail we will lose the whole world, since there will be nowhere else
to hide.'4

Notes

  1. Figures
    given by assigned counsel, Steven Kay, Trial Chamber, 29th
    November 2005, Milou0161ević trial transcript p. 46701.
  2. Michael
    P. Scharf and William A. Schabas, Slobodan
    Milou0161ević On Trial: A Companion
    , Continuum, New York
    and London, 2002, p. 3.
  3. u2018Control
    and Management of Heavy Fraud and Other Complex Criminal Cases,
    A Protocol issued by the Lord Chief Justice of England and Wales,'
    22nd March 2005.
  4. Private
    correspondence with the author.

February
7, 2007

John
Laughland’s [send him
mail
] next book is A History of Political Trials from Charles
I to Saddam Hussein (Peter Lang).

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