Milosevic's trial need not be victors' justice

Geoffrey Robinson, Author, 'Crimes Against Humanity -- The Struggle for Global Justice', Guardian News Service, London

Courts try cases -- but cases also try courts. Never more so than the international criminal tribunal in the Hague, which on Monday began to consider the evidence against Slobodan Milosevic on charges of war crimes and crimes against humanity. This court must refute the charge of "victors' justice" by being scrupulously fair to a defendant who does not want justice at all.

That Milosevic deserves to stand trial cannot be doubted. He is no brain-damaged Pinochet or cancer-ridden Honecker, but 60 years of age and looking in ruddy health. No ignorant foot soldier he, but a lawyer-turned-banker who commanded a country and an army and who allegedly controlled the paramilitaries who committed the worst atrocities in Europe since the second world war. If his "command responsibility" for genocide or other crimes against humanity is proved beyond reasonable doubt, he deserves to be locked away for life.

Milosevic, however, refuses to defend himself. He has chosen the "King Charles I gambit" from the English Civil War period -- he claims the court is unlawful. Cromwell's judges made the mistake of treating this as a plea of "guilty" and rushed to judgment without examining the evidence. The Hague tribunal, however, has entered a plea of "not guilty" on Milosevic's behalf and has appointed a team of amici curiae (friends of the court) to take all the points the defendant might have taken had he chosen to contest the charges. This is fair enough, in so far as it will require the court to rule on points of law which Milosevic might subsequently take on appeal.

But there are regrettable indications that the judges will want the amici team to go further, by challenging prosecution witnesses despite having no instructions from Milosevic. This overlooks the principle that a "friend of the court" is not a friend of the defendant and any cross-examination undertaken without his instructions cannot be a true test of credibility. If the amici are used in this role, the proceedings will turn into a show trial, not a fair trial.

The logic of Milosevic's position that the court has no authority is to play no part in its proceedings. He should insist on remaining in his prison cell (a defendant has a right to be present at his trial: He must equally have a right to absent himself from it). The tribunal will then have to do its best to evaluate the prosecution evidence, producing convictions only on charges (if any) that it finds to have been proved beyond reasonable doubt. Milosevic supporters can then hardly complain about unfairness -- the trial will have been as fair as Milosevic's tactics have permitted.

The taunt of "victors' justice" is facile. Victory in war can provide the opportunity to do justice -- as it did to the authors of the Holocaust and may yet to the perpetrators of ethnic cleansing. The taunt can only be made effective if Milosevic emerges from his corner. He could, for example, object to being tried by any judge from a NATO country. He could argue that NATO's bombing of Serbia was unlawful. As for genocide in Bosnia, he could claim that powerful western figures acquiesced -- especially the pro-Serb faction in John Major's government. He could testify that he had insufficient control over the Bosnian Serbs and the paramilitaries to fix him with "command responsibility" for their atrocities.

These defenses might or might not succeed, but the fact that he refuses to make them in open court, where he has the power to challenge the witnesses against him and to call any relevant evidence in his defense, fatally undermines claims of his supporters that he is being subjected to undue process. Even at this late stage, if he changed his mind and chose to contest the charges, he could force the court to adjourn and provide him with every opportunity and facility to mount a full-blooded defense.

Nonetheless, his tactic poses a challenge to the Hague tribunal and to the international criminal court which will in due course supersede it. International criminal justice is at a delicate and rudimentary stage, feared and loathed alike by elements of the socialist left (who see it a as plot for imposing U.S. values on the world) and by rightwing Republicans in the U.S. (who see it as a plot by the socialist left to trap the Kissingers of the future). So the Hague judges must tread a fine line, bending over backwards to be fair to a recalcitrant defendant, without making the mistake of pretending that his case can be adequately presented by advocates without clients.

The acid test of the Milosevic trial is not whether it will "be victors' justice" but whether it will be "justice". That test was passed by the judgment at Nuremberg because it produced an indelible historical record to confound future Holocaust deniers. Judgment on Milosevic will be made more difficult by his non- participation, and more generous, since he will have to be given the benefit of any doubts that his own cross-examination may have dispelled. It may be that this is the true reason for his truculence.