Milosevic case is far from a foregone conclusion

By Geoffrey Robertson

LONDON: The proceedings which begin this week at the Hague will doubtless be dubbed "the trial of the 21st century". But they will be as much a trial of the fledgling system of international criminal justice as they will of Slobodan Milosevic.

There is no true precedent for a trial of a former head of state on charges of committing crimes against humanity. Nuremberg was not an international court, because the judges were all from the "big four" victor powers. The Hague tribunal has thus far convicted only soldiers who raped and killed and tortured, or the generals who gave them their orders -- not politicians alleged to bear responsibility for atrocities they failed to prevent or for genocides of which they are loosely said to be the "intellectual author".

The Hutu ministers jailed by the Hague's offshoot tribunal in Arusha have mainly pleaded guilty, in order to avoid the death penalty which would be imposed if they were tried in Rwanda.

The case against Milosevic is at present confined to several hundred Serb killings in Kosovo, but is certain to include a further indictment alleging genocide for ethnic cleansing in Bosnia, beginning with the Vukovar hospital massacre in December 1992.

It is based on the legal theory of "command responsibility", which fixes a military or political leader with criminality for failure to take "necessary and reasonable steps" to prevent or punish crimes against humanity which he knew were being perpetrated. This doctrine stems from the U.S. supreme court decision which approved the Tokyo trial conviction of Gen. Yamashita. It is correct in principle, but all too easy for a partial court to misapply in practice: Yamashita is now accepted by historians as the only Japanese general who genuinely did not know that his troops were running amok, and his execution appears in retrospect as a miscarriage of justice.

This fact alone focuses attention on the identity and nationality of the international judges -- the three who will preside at the trial and the five who will decide the inevitable appeal. The first tactic of Milosevic's lawyers will be to object to judges from NATO countries, deploying as their precedent the UK House of Lords (the UK's highest appeal court) ruling which disqualified Lord Hoffmann in the Pinochet case because of his connection with Amnesty International.

The judges of the Hague tribunal have thus far shown no bias for or against the Serb and Croat commanders they have convicted (and, in a few cases, acquitted) and Milosevic's indictment was approved by David Hunt, an experienced Australian criminal trial judge -- but even so, it was irresponsibly denounced as "political" by the governments of Greece and Russia.

This foreshadows the first big test for international criminal justice: can its judges rise above the politics and policies of the governments which appoint them? The record of the international court of justice has not been reassuring -- the decisions of Russian, American and Chinese jurists in particular have tended to reflect national policies.

But there are signs of a new breed of truly independent global judges, especially at the European court of human rights (where the UK judge is particularly celebrated for his willingness to find against the UK). In the Milosevic case the court's first problem will be whether to insist on the independence and impartiality of all its judges, or to put together a special tribunal comprised of judges whose countries took no position for or against the NATO bombing.

Milosevic cannot claim, as did Pinochet, that as a former head of state he has sovereign immunity, because this is expressly excluded by article 7(2) of the Hague tribunal statute. His defense to the allegation of command responsibility for the Kosovo massacres will have to be that he knew nothing about them. Most (but not all) took place after NATO began bombing, one action which his lawyers will certainly try to argue was an unlawful attack on Serbian sovereignty.

For this proposition, with its potential to embarrass NATO, they will doubtless quote the dubious conclusion of Donald Anderson's British House of Commons select committee, which failed to recognize the international law right to breach sovereignty in a humanitarian emergency, or in order to prevent or punish an ongoing crime against humanity. The court may not find it necessary to rule on this issue, because it can never be a justifiable act of self-defense to massacre innocent civilians in reprisal for an unlawful attack.

One projected defense which will not get off the ground is the claim that his extradition to the Hague was a ransom for aid money and contrary to the Serbian constitution. Every state has an international duty to try those accused of crimes against humanity or to extradite them to a forum which will conduct a trial.

Eichmann was kidnapped, the Lockerbie defendants were extracted as a direct result of sanctions on Libya, and Gen. Blaskic (sentenced to 45 years for ordering the destruction of Serb villages) was sent to the Hague by Croatia in return for a large U.S. loan.

This dawning "age of enforcement" of human rights prosecution has a "catch as catch can" quality: Milosevic's guilt for early atrocities in the Balkans may be no greater than Franjo Tudjman's, who died unindicted. But the substantial evidence that he bears at least some responsibility for a war that raged for seven years and lost a quarter of a million lives demands judicial assessment, irrespective of how he comes to the court.

That war, which he allegedly waged through Bosnian Serb surrogates, will be the subject of a new Milosevic indictment for genocide. Sensibly, this would be tried after the Kosovo charges. His defense will be to lay all the blame on the Bosnian Serbs, which makes it crucially important to lift Karadic and Mladic so that they can join him in the dock, perhaps to run the "cut- throat defense" familiar among co-conspirators who blame each other at the Old Bailey court in London and which usually results in all being convicted. If the verdict is "guilty" Milosevic cannot receive a sentence less than Blastic, and that means life imprisonment from which he will never be released.

However, the conviction of Slobodan Milosevic is far from a foregone conclusion and his trial may yet provide ammunition for the western diplomats and Pentagon generals who are opposed to the very idea of international criminal justice. Churchill demanded summary execution of Nazi leaders, fearing that they would exploit the Nuremberg trial as a soapbox, or else it would make them martyrs. (He was outvoted by Truman, who had an idealistic faith in justice, and Stalin, who loved rigged trials where every defendant was shot at the end.) Nuremberg succeeded for two reasons: it was conducted fair-ishly (several defendants were acquitted) and it provided an imperishable factual record to confound future Holocaust denials.

The task of the Hague tribunal, with proceedings which will last for several years, is to rise above today's triumphalism at Milosevic's arrest. On its capacity to give a fair trial depends the case for an international criminal court. It must not shrink from acquitting the man the media calls "the Butcher of Belgrade" if the evidence fails to establish his guilt beyond reasonable doubt.

The writer is a leading British lawyer and author of Crimes Against Humanity -- The Struggle for Global Justice.

-- Guardian News Service