Feature Articles from Inprint Newsletter (2001–2004): Milosevic in The Hague: Trial or Error?

Nov 19, 2001

On June 28, 2001, exactly ten years after the outbreak of war in Slovenia and Croatia, and on the fated Serbian holiday of Vidovdan (marking the anniversary of a battle the Serbs lost in Kosovo in 1389), former Yugoslav leader Slobodan Milosevic was extradited to The Hague. He now faces an international criminal tribunal, the first former head of state to do so.

For the international human rights community, this outcome marks a moment of triumph. Milosevic will stand trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) for his campaign of terror against the ethnic Albanian population in the Serbian province of Kosovo, as well as for genocide and war crimes in Bosnia. Had he remained in Serbia, Milosevic would most likely have faced charges of gross political corruption, embezzlement, and election fraud--a far cry from crimes against humanity.

The Milosevic case sends a powerful message to other would-be tyrants that they, too, could be held accountable for their crimes. Built on long-standing jurisprudence and still-developing precedent, the trial of Milosevic provides a fillip to the movement toward strengthening international law.

Yet some find this a worrying trend. In a recent Foreign Affairs, Henry Kissinger suggested that there is something wrong with empowering international bodies such as the ICTY with broad mandates that could go so far as to indict U.S. officials involved in the NATO air campaign in Kosovo. He also objected to the general idea that "heads of state and senior public officials should have the same standing as outlaws before the bar of justice."

The current trial of Milosevic suggests that states are capable of surrendering some of their sovereign rights to see justice occur under UN auspices. But what about the principle of universal jurisdiction, which has been invoked in the cases of Augusto Pinochet and the Rwandan nuns accused of complicity in genocide? Some could argue that the power to indict anywhere gives too much authority to rival states, taking away the right of the states in which the crime occurred to mount bona fide prosecutions or grant pardons where appropriate.

Differences in opinion over international justice and jurisdiction speak to an even more fundamental ethical question. Most would agree that human rights violators should be held accountable. But which policy would serve to implement this vision: one that encourages countries to pursue justice according to their own established traditions and laws, or one that promotes international norms and allows intervention?

The United States and the international community may face this question again if Osama bin Laden and members of the Al-Qaeda network are apprehended. Where should the alleged terrorists be tried: American courts, the courts of the country where they are held, an international tribunal, or a Nuremberg-style tribunal formed by several countries? Since the law provides solid legal arguments for various "correct" answers, the ultimate policy choice will inevitably invoke moral and political argument.

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