The Milosevic trial: a travesty of justice

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

The vast majority of what passes for analysis of the Yugoslav break-up and wars, and later events such as the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), is marked by a blatant disregard for either evidence or accuracy. In stark contrast, John Laughland’s excellent book on the ICTY and the trial of Slobodan Milosevic is a powerful critique based upon a detailed analysis of both the procedures and rules governing the ICTY in general, and Milosevic’s trial in particular.

It is difficult to do justice to the utter arbitrary lawlessness of the ICTY. In the first place, the ICTY is not a court as is generally understood nor can it be compared to apparently similar bodies like the International Court of Justice. The ICTY is an explicitly prosecutorial institution, in which the Office of the Prosecutor is part of the Tribunal and is set up, in its own words, for the ‘sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia’.

Laughland shows us an institution staffed by judges who often have little experience of criminal law, let alone international criminal law. For example, American judge Gabrielle Kirk Macdonald was amazed to be asked to serve on the ICTY. When she protested that she did not know anything about international war crimes, she was told that that was immaterial and that she would learn. We can only speculate as to how much experience British judge Richard May (who presided over Milosevic’s trial) garnered in international criminal law and international relations from his experiences as a crown court judge on the Midland and Oxford Circuit. Other judges have been entirely without any kind of judicial experience but have been law professors, legal advisers or even, in the case of the Turkish judge, a diplomat.

Astonishing though this is, it is perhaps the least shocking aspect of the institution, when considering both the gravity of the charges laid against the defendants and the entirely novel nature of the Tribunal and its aims. The rules of procedure of the ICTY, for example, have been changed every three months since the ICTY was set up. Incredibly, the ICTY judges make the rules themselves, overturning the fundamental distinction between a judicial and a legislative role. ICTY judges are in essence making international law. Furthermore, the Tribunal is a pick and mix patchwork of the two main systems of law, the adversarial system and the inquisitorial system, overturning, as Laughland points out, the checks and balances inherent in each system.

The rules of procedure of the ICTY would have made Stalin blush. The processes of the ICTY are in effect a rejection of everything that differentiates law from arbitrary rule. Secret indictments are used, hearsay evidence is often permitted and the fundamental legal principle of ‘no crime without a law’ – ie, that an act should not be made a crime after the event – is overturned. Anonymous witnesses are commonplace, contravening the fundamental principle of criminal law that the accused has a right to know who the witness is and to cross-examine them. The ICTY also overturns the ‘double jeopardy’ principle, whereby one may not be tried for the same crime twice. The ICTY allows the prosecutor to appeal against the acquittal of a defendant who has been found innocent and to obtain their continued detention. These procedures contravene existing international conventions, such as the European Convention on Human Rights, and the ICTY’s own statute (1).

In order to prosecute Milosevic, the ICTY relied upon a legal principle which it had invented on the hoof, that of ‘joint criminal enterprise’. This concept does not appear in the ICTY statute nor anywhere else, nor even in the original ‘indictments’ of Milosevic. As I have argued previously on spiked, this novel principle essentially allows the ICTY to convict someone in the absence of any evidence whatsoever (2). Although the prosecution had originally issued three ‘indictments’ of Milosevic (regarding Croatia, Bosnia and Kosovo), this was then changed into a sort of ‘super’ indictment. Here, the prosecution attempted to make the political case that Milosevic had orchestrated a vast ‘joint criminal enterprise’, beginning in Croatia and concluding in Kosovo, to create a ‘Greater Serbia’. In keeping with the general ad hoc procedures of the ICTY, this idea of ‘Greater Serbia’ had not featured in the original separate indictments.

The idea of a ‘joint criminal enterprise’ was based primarily on BBC documentaries and misquoting Milosevic’s speeches. The prosecution’s own star witnesses – including employees of the Office of the Prosecutor – failed to offer any proof of such a conspiracy. The trial spent a lot of time listening to anonymous witnesses who could shed no light on who might have committed the alleged crimes or who could only offer hearsay evidence. Finally, after three years of the trial and to the shock even of the ICTY judges, the prosecutor, Geoffrey Nice, was forced to admit that Milosevic had never even used the words ‘Greater Serbia’. The decision to continue the trial after the resignation (on grounds of ill-health) of Judge May, the imposition of defence counsel on Milosevic against his will and, when Milosevic was ill, trial in absentia, are all aspects of what Laughland calls the fundamental lawlessness of the Tribunal. Milosevic’s death brought an end to the farce, which was surely a relief to those running the ICTY.

Laughland’s book is excellent for his critique and analysis of the ICTY and Milosevic’s trial in itself, but he also engages with broader shifts in post-Cold War international relations. For example, Laughland examines the erosion of the fundamental distinction between war and crime. The idea that war, as the act of a state, should be viewed in political rather than moral terms has increasingly been called into question in much post-Cold War security theory and international security policy. Laughland also highlights the dangerous implications of ethics and morality as a basis for international relations.

Laughland tackles some crucial theoretical questions. He argues, for example, that state sovereignty, as properly understood, clarifies and renders accountable the exercise of power (3). This is particularly problematic when the criminal justice system is detached from the state. As Laughland points out, the ICTY is in no way accountable to the people over whom it claims jurisdiction in the way that a normal legislative system, however bad, would be.

Laughland shows that the common argument that the ICTY is a continuation of Nuremberg and existing international law is false. In the first place, this ignores the central charge of Nuremberg, ‘aggressive war’ (as also codified in the UN Charter). Furthermore, Laughland points out a more important and crucial difference between Nuremberg and the ICTY: whilst the ICTY is established in the name of an unaccountable and non-existent ‘international community’ and international morality, the Nuremberg trials were grounded in the explicit assumption of sovereignty over Germany by the Allied powers. Nuremberg was a highly problematic entity. Nonetheless, the lines of both responsibility and accountability were clearly drawn at Nuremberg, something that cannot be said about the ICTY.

While there are some points on which I would disagree with him – for example, I don’t think there is an all-powerful, crusading and ideological supra-nationalism at work today – these are largely tangential to Laughland’s central argument. Travesty is a powerfully argued book based upon compelling analysis that should be widely read.

Tara McCormack is a doctoral student researching post-Cold War security theory at the University of Westminster.

Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice by John Laughland is published by Pluto Press. (Buy this book from Amazon(UK))

(1) See also: Sellars, Kirsten (2003) The Rise and Rise of Human Rights, (Stroud: Sutton) chapter 9, for an excellent discussion of the ICTY

(2) How did Srebrenica become a morality tale?, by Tara McCormack

(3) See also Bickerton, C, Cunliffe P, Gourevitch, A (2007), Politics Without Sovereignty, A Critique of Contemporary International Relations Theory (London: Routledge)