Milosevic in The Hague: Trial or Error?

Nov 19, 2001

How and where should we try the world's most infamous criminals? Does the trend toward international justice and jurisprudence contain an ethical dilemma insofar as it compromises national sovereignty? Does the trial of Slobodan Milosevic at The Hague provide support for trying al Qaida members in an international court?

In the case of Osama bin Laden and his al Qaida collegues, the Bush administration has been firm in saying all suspected terrorists will be tried in the U.S., but they have complicated the issue by pushing for secret military tribunals. Spain, by recently declaring it would not extradite suspected terrorists to the United States if they would face such a tribunal, has shown the U.S. can not act unilaterally in prosecuting the war on terrorism.

I think we can all agree Osama bin Laden should be brought to justice, but what kind of court do you think should dispense that justice? Do you agree with the decision to try Milosevic at The Hague? Do these extraordinary times call for extraordinary measures such as military tribunals?

Tony Lang

Slobodan Milosevic represents the most recent and most glaring example of the power of international courts to try heads of states for crimes against humanity. This development represents a radical shift in the conduct of international affairs. More importantly, however, it may gravely harm the very thing it seeks to protect - the protection of human rights.

In order to make this admittedly rather controversial claim I want to step back and reflect on the concept of rights. Rights are rationally grounded demands made upon other people that are politically guaranteed. Underlying this definition of rights are two important assumptions: One, rights assume a world in which people do not get along. If we did all get along, we would have no need for rights. Two, rights can only be guaranteed by a political system. This means a system in which there is the power of enforcement and coercion. More importantly, these political systems must be ones in which individual citizens voluntarily agree to be active participants, i.e., democracies.

The paradox of rights is that while they need a political system to guarantee them, political authorities are also the most egregious violators of rights. So, rights are necessary to protect us not only from fellow citizens, but also from the governing authorities. This fact has given rise to the types of international courts, tribunals and statutes under which Milosevic is being tried.

While I think the impulse to put leaders like Milosevic on trial is a good one, I also think it fails to understand these basic dimensions of rights. By moving the prosecution and enforcement of such persons to the international level, we undermine the creation of domestic political systems in which citizens actively participate and vigorously protect their rights. The global system is too big for democracy and does not give individuals a substantive role to play. This can only take place at the domestic level.

I admit that this argument does not help individuals who live in systems that are not democratic and in which rights are violated. But I believe that the long term goal of my argument, that rights need to be protected by citizens advocating for them, is more important than the short term suffering that will result from specific systems that continue to violate rights. Thinking about international ethics demands seeing such issues in the long term, even when it may seem immoral in the short.

Tony Lang runs the Carnegie Council's Education department. He is a former instructor at the American University in Cairo.

Leonard Hammer

There is an important distinction between the trial at The Hague and bringing Bin Laden to justice. The mechanism is already in place at The Hague and therefore it is operable. Hence we have viewpoints as stated in a recent editorial by Proffesor Koh that Bin Laden should be brought to the U.S. and tried for his crimes. More importantly, trying Bin Laden in a domestic U.S. tribunal is more convenient given the existence of a legal framework.

Bringing Milosevic to justice in an international forum by contrast is possible because basic norms such as the prohibition of genocide and crimes against humanity exist within the international framework.

Nonetheless, there is an underlying problem here. Should Bin Laden be tried in a U.S. court, the very purpose in deeming the U.S. action as one of international concern is defeated. The action in Afghanistan is not solely about capturing on individual, but relates to the notion that terrorism is to be deemed an international crime and an action that raises the concern of all states. Terrorism should no longer be associated with legitimate forms of resistance or movements for self-determination but should once and for all be recognized as an international crime. States are now willing to create a normative framework that would deem terrorism an international crime, and maybe even include it within the list of crimes that are under the mandate of the eventual International Criminal Court. While such a development might take time and effort, making the initial effort to create an international consensus would be lost without some form of lasting effect. Bin Laden is more than a common criminal and he should be used for what he is worth - as an example that terrorism is an international crime against humanity and should be deemed as such by all states.

Leonard Hammer is a Lecturer on Law and International Human Rights in Israel at Bar Ilan University, Ramat Gan Law College and Rothberg International School. His Carnegie Fellows project is entitled "Local Human Rights, International Norms, and Migrant Workers in Israel" and will focus on how Israel implements the human rights of migrant workers.

Bahman Baktiari

Certainly, when the idea of prosecuting war crimes was floated at a conference on Yugoslavia in London in 1992, few took it seriously, least of all Milosevic himself. The trial of the man who inflicted four separate wars in the former Yugoslavia will be a trial of the world's ability to operate a truly embracing system of international justice. In some ways, the work of the tribunal is even more dramatic than what Nuremberg achieved. The Nuremberg trials were intended to ensure that the Nazis were forced to take responsibility for their guilt. The Hague tribunal seeks to ensure that human rights themselves can finally count for something, even in war. Nuremberg was victors' justice. At The Hague, the idea is that justice should be blind.

Nevertheless, pessimists never fail to point out that putting people like Milosevic and Osama bin Laden on trial for genocide and crimes against humanity will bring nobody back from the dead. Nor will imprisoning them necessarily deter future dictators and terrorists from behaving like murderous lunatics. However, I believe it is important to put people like Milosevic and Osama bin Laden on trial at The Hague because it gives the message that people will be held accountable for their actions. Moreover, trying them for crimes against humanity is better than the alternative of not trying them.

It would be a mistake for the United States to resort to military tribunals. Besides the fact that this will undermine The Hague court, the proposed tribunals bear a closer resemblance to the closed and arbitrary security courts that the U.S. has loudly criticized in Egypt and Peru, among other places. Spain has already indicated politely, but firmly, that it will not extradite suspected terrorists if they are to be put on trial in a military tribunals. Other European countries also support Spain's position.

Bahman Baktiari directs the International Affairs Program at the University of Maine, where he is also an associate professor of political science. Originally from Iran, he has written a major book and several articles on revolutionary Iran.

The opinions expressed in this roundtable do not necessarily reflect those of the Carnegie Council on Ethics and International Affairs. In addition, we are not responsible for the content of external Internet sites.

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