Anthony Dworkin, 13. februar 2002

On Tuesday 12 February 2002, Slobodan Milosevic went on trial before an international war crimes tribunal in The Hague. The appearance in the dock of the ex-president of Serbia (and later, what was left of Yugoslavia) is a major event for international justice. ‘The most significant war crimes trial since Nuremberg’, as the standard journalistic catchphrase would have it.

Yet the public response in the West has been muted; the press coverage seemingly dutiful, not passionate. Already, Milosevic seems like a figure from a subtly different era: a strongman who merely aspired to local ethnic thuggery, not a global clash of civilizations. The man whose stolid features came for a time to embody the idea of international disorder has been eclipsed by a new global Public Enemy Number One.

Milosevic’s trial will be long – two years, the prosecutor estimates – and, in the manner of most legal proceedings, often tedious. Nevertheless, it is a landmark event, and its significance for our new ‘age of global terror’ is just as great as the reflection it will cast on Europe’s decade of ethnic cleansing.

Beyond the judgement that is returned on Milosevic’s actions, something more is at stake in The Hague: nothing less than an emerging vision of international society. The trial is the greatest practical test so far of a model of international order based on the concepts of crime and justice, rather than simply power and collective security.

Slobodan Milosevic has acquired the dubious distinction of being the first former head of state to stand trial before an international court for crimes against humanity. Recently, prosecutors have moved to start proceedings in a Belgian court against Israeli Prime Minister Ariel Sharon for his actions in Lebanon. And attempts have been made to try former Chilean president Augusto Pinochet, as described in an interview with his prosecutors on openDemocracy in 2001. But they too sought to bring him to account in national courts, in Britain, Spain and Chile; and their attempts have not yet succeeded.

Milosevic is on trial as an individual. Implicit in his indictment is the idea that his actions forfeited him the standing of a statesman, legitimately pursuing the interests of his country. They transformed him into a criminal, an offender against the fundamental laws of humanity.

At a time when the concept of economic globalisation is ubiquitous, the proceedings against Milosevic can be seen as a form of legal globalisation: an acknowledgment that the most atrocious actions are the concern of all humanity, and that international justice can reach across state boundaries to punish them.

Of course, the defendants at Nuremberg (and in the less-well-known Tokyo trials) were charged as individuals as well. But those proceedings, however impressive in other ways, were inevitably incomplete. Only the war’s losers were in the dock, with the victors sitting in judgement, and among the charges were some that had not been codified as crimes before the trial process itself.

The current movement for international justice aspires to something altogether more far-reaching and impartial. The Yugoslav tribunal is genuinely international in its make-up, and has jurisdiction over all crimes committed in the former Yugoslavia (so far, it has completed trials of thirty-one people, including Serbs, Croats and Bosnian Muslims). Its legal foundations are solidly rooted in a series of international conventions signed in the years after 1945.

And it is only the first of a swelling tide of international tribunals: Rwanda, East Timor, Sierra Leone and Cambodia are all at varying stages of a similar process. The creation of a permanent international criminal court – already ratified by fifty-two of the sixty countries necessary – is not far behind.

This new vogue for putting judges in charge of the aftermath of conflict is based on the assumption that the world is getting more like a single political community, where it is judges who enforce the rule of law. Atrocity within the boundaries of a settled individual country is treated as crime. The underlying assumption – if you like, the bet – behind the Milosevic trial is that the actions of the man who triggered years of bloody fighting in the Balkans can be dealt with similarly.

The result is not a foregone conclusion. First of all, the prosecution may not be able to prove its case. Under the terms of the tribunal, Milosevic cannot be charged with having started the wars in Croatia or Bosnia. (The question of whether aggression should be seen as a state action or an individual crime in international politics is a particularly thorny question that goes to the heart of the complexities of the current international scene.)

If he is to be found guilty, prosecutors must show that he personally ordered, or at least had ‘command responsibility’ for, ethnic cleansing, rape, torture and the deliberate killing of civilians. It’s not yet clear what evidence they can produce. Will they be able to obtain the testimony of any of Milosevic’s close subordinates, who might be able to tie him directly to knowledge of these crimes? Their opening statements suggest the prosecution may have such witnesses up their sleeves.

Moreover, to do justice to the magnitude of the occasion, the prosecution must show that Milosevic’s authorization of these crimes was part of a consistent pattern of trying to establish a greater Serbia through terror and population displacement – not just a sporadic campaign of random brutality.

But more importantly, even if the prosecution wins its case, it could lose the larger contest: to secure Milosevic’s conviction in a way that reinforces the legitimacy of the court, rather than undermining it. As it happens, this, more than the legal proceedings per se, is the ground on which Milosevic has chosen to fight.

He refuses to recognise the authority of the tribunal; in particular, he claims that it is not an impartial legal body, but an extension of NATO’s military campaign against Serbia over Kosovo. On the eve of the trial, a group of his backers, the ‘International Committee to Defend Slobodan Milosevic’, issued a press release describing him as “the archetypal political prisoner of the New World Order”.

Absurd, preposterous, laughable, many people in Western Europe and the United States will tell themselves – yet the rhetoric is not without some resonance. Last week, the two leading political weekly magazines in Britain (the Spectator and the New Statesman) both ran articles attacking the tribunal as a political body. When Milosevic attempts to call Bill Clinton, Tony Blair and Madeleine Albright as his witnesses, he will be playing to this sentiment.

He will charge that he was courted by the West when he was needed for the Dayton peace process in 1995; then turned on and unlawfully attacked for his attempts to suppress Albanian terrorism in Kosovo. And he will be appealing to disquiet generated not so much by the tribunal itself, as by the actions of the great powers that support it, and that underpin today’s international system; above all, the United States.

International law is at an uncertain stage in its evolution, with enough grey areas to allow the arguments of the sceptics to gain some purchase. NATO’s attack on Serbia, without the authorization of the UN Security Council, was in apparent violation of the UN’s Charter.

To many in the West, it was nevertheless justified; in the words of the Independent International Commission on Kosovo, it was “illegal, yet legitimate”. But to reinforce the argument that the imperative to prevent crimes against humanity can override the claims of sovereignty, the NATO powers must act consistently – as far as they realistically can – in accordance with the picture of a world under law.

Which brings us to America’s response to the terrorist attacks of 11 September. Osama bin Laden’s brand of apocalyptic terrorism might be seen, after all, as the perfect opportunity to reinforce the notion of a global community bound together by foundational principles of criminal justice. Yet the response of the United States has wavered uncertainly between the rhetoric of war and law enforcement.

From the start, President Bush and his administration have talked of a ‘war on terror’ and have established military tribunals in preference to domestic courts or an international tribunal. Yet at the same time Bush has resisted attempts to classify those captured in Afghanistan – either al-Qaida members or Taliban fighters – as prisoners of war. These are not simply semantic distinctions, but have a real impact. They determine the legal position of the captives and the way they can be treated.

This is not to say that the United States should give up its right to protect its territory and its citizens in the name of an utopian vision of international peace. But if America wants its exercise of power to be seen as legitimate in the world – a principle we should all support as the best hope for international order – then it should not act as if justice was an instrumental good, that can be applied on a sliding scale of rigour as it suits American purposes.