The Milosevic trial

Milosevic undoubtedly is, or has been, a thug, a crook and a nasty dictator. All the same, I can’t help feeling queasy about his current trial by the so-called International Criminal Tribunal for the former Yugoslavia at The Hague, presided over by a British judge of whom hardly anyone seems hitherto to have heard. A fascinating article in the Guardian of 16 February by Dr John Laughland, author of a forthcoming book on the tribunal, powerfully reinforced my queasiness. For starters, Laughland points out that the Hague tribunal was created in 1993 by the UN Security Council, "a body which has as little right to set up a court as it does to raise taxes". The International Court of Justice (ICJ), also at The Hague, but not by any chance related to the tribunal, is of course a primary organ of the United Nations established by the UN Charter itself, and I can find nothing in the Charter that implies even indirectly that the fifteen governments who happen to constitute the Security Council at any particular time have the power or authority to set up courts to try individuals or to send them to prison for the rest of their lives. Milosevic’s basic challenge to the tribunal’s legitimacy in international law looks, to this layman anyway, worryingly well founded.

Laughland goes on to dismiss any comparison between the Yugoslav tribunal and the international military tribunal which tried the Nazi war criminals at Nuremberg at the end of WW2. The Nuremberg court was set up by the sovereign powers to which Germany had surrendered, and the crimes for which the accused were on trial were "war crimes" – crimes against the peace, starting an aggressive war and waging it in ways that were contrary to the rules of warfare established in international law. The court didn’t claim to represent "the international community" or to be making new laws apart from establishing that the planning and execution of a war of aggression constituted a criminal act in international law. By contrast, in June 2000 the Hague tribunal’s prosecutor refused to begin an investigation of allegations that NATO had committed war crimes in Yugoslavia by launching a military attack on Serbia (including Kosovo) without the authority of the Security Council or in self-defence. The close identification of the main NATO countries with the establishment and funding of the tribunal, and the tribunal’s refusal to look into an inherently plausible allegation of a Nuremberg-type "crime" committed by NATO, raise a disturbing question about the tribunal’s impartiality and thus about its credentials for trying Milosevic and others.

Perhaps most striking of all, Laughland remarks, almost as an aside, that "It had always been obvious that the NATO attacks on Yugoslavia were illegal under the post-war United Nations-based system. Not only were the attacks not approved by the security council, that body was not even consulted. Indeed, speeches by world leaders—including Blair’s speech on "the doctrine of the international community" given in Chicago on April 22 1999—made clear that the very purpose of the Nato attacks was to overturn the old international system and to replace it with a new one." This is significant support for the propositions in my own detailed and documented analysis of the NATO attack on Serbia, available elsewhere on my web site, and in the critiques by Mark Littman QC and by Denise Mumford.

The argument that NATO’s war was not just illegal, but also unnecessary and unsuccessful, has also received increasing support from such knowledgeable observers as General Sir Michael Rose, former head of the UN Protection Force in Bosnia, who wrote in a review of a flag-wagging book by the US General Wesley Clark that "neither was the result of the war a victory in the classic sense, nor were Nato’s specific objectives met. These were, first, the prevention of more civilian suffering in Kosovo, second, the disruption and destruction of the Serb forces carrying out atrocities against the Kosovo Albanians, and third, the enactment by Milosevic of the demands set out at Rambouillet by the international community… in the 11 weeks following the onset of hostilities on March 24, 1999, thousands of people were massacred and 1m driven from their homes in a programme of ethnic cleansing by the Serbs that accelerated after Nato began its bombing campaign. Militarily, the Serb army was scarcely damaged. Finally, at a political level, the one remaining point of disagreement at Rambouillet that led to the war (that of giving unrestricted freedom of movement for Nato troops in Yugoslavia) was never conceded by Milosevic… It is clear that the solution to Kosovo always lay in "democracy in Belgrade", as Biljana Plavsic, former president of Republika Srbska, once explained to Clark. Unfortunately, the bombing of Yugoslavia not only weakened the existing domestic opposition to Milosevic but delayed the start of the democratic process." Rose also pointed out that the Kosovo campaign failed utterly to demonstrate that "the strategic use of air power… is capable, by itself, of delivering the sort of strategic goals demanded by Nato in 1999", concluding that "It will be a lasting tragedy if our politicians and generals continue to believe that bombing alone can deliver solutions in such complex humanitarian situations" [Sunday Times Books section, Culture magazine, 18 November 2001]. The Americans’ experience in Afghanistan has clearly done nothing to call that conclusion into question.

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