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