On Wed, 9 Oct 2002, Chris Doss wrote, quoting someone else:
> > that "Milosevic is no war criminal" nor "a dictator," and that there
> > was never any coordinated campaign of genocide or ethnic cleansing by
> > Serbs, no massacres at either Racek or Srebrenica
Srebrinka, on the other hand, was fully and awfully true. Thousands of people were killed in cold blood.
On the other hand, Milosevic had roughly as much control over the proxies who did this as the US had over the Guatemalan proxies who committed an even better documented and much more extensive genocide 10 years before. And a law that applies in only one case is not a law at all. It's a show trial, pure and simple. It's an attempt to give legitimacy through legal ritual to a verdict of guilty arrived at beforehand and imposed by force.
Now there may well be a case to be made for show trials. Like war itself, they might be inherently bad things that in some circumstances are conceivably better than the alternative. Leaving aside some pomo legal theorists who argue that all trials have a show trial aspect, the argument I find interesting is the idea that large scale massacres almost always and quite understandably give rise to feelings of undying revenge. And that these feelings can normally only be satisfied by a counter-massacre, or by a generation of deep distrust that makes true civil peace impossible. And that if a show trial were able to canalize and satisfy this desire for revenge into symbolic form, by providing Lots of noise and very little actual violence exercised on only a few leaders, it might satisfy this desire for revenge in a form that was preferable to the alternatives. It might lead out of an endless cycle, and might therefore be politically constructive.
Perhaps. Perhaps sometimes revenge is a political reality that must be satisfied. But even if so, the process of doing so should not be mistaken for building law. And people who point out how far the Yugoslav Tribunal falls short of law should not be excoriated as apologists. What they are saying is true. What we have here is the appearance of law legitimating power and revenge. Even if those turn out to be good things. Ours is a law of procedural fairness. And there are too many key exceptions to those procedures for this to count as a fair trial or as a legitimate one. And an unfair, illegitimate trial is not a legal model.
Now there was an alternative which this court explicitly turned down, and I think wrongly, and that was to have Milosevic tried in a Serbian court. The fear is that he would have gotten a weaker sentence. That may well have been true. But he would have also gotten a better trial -- a trial under legitimate institutions. If one is interested in improving law, I think that's the course you have to take. Given a choice between a better trial and a stronger punishment, you should choose the better trial. The choice between harsher punishment and more legitimate procedures is the choice between exacting revenge and strengthening law.
This BTW is, or could be, the crucial difference between the ICC and the Yugoslav tribunal, which seems to be little noted by people on both sides. There is a provision in its charter that it will not try anyone for any crime if the country that has jurisdiction agrees to do so. It would only try cases itself in countries without the institutions to do so themselves. And it's easy to see how this latter could have been beneficial in the case of Rwanda, where suspects have been held in horrible conditions for years in part simply because the legal machinery was completely overwhelmed. Having a well-oiled machinery already set up for a case like that would have been a great improvement for all concerned from any point of view.
But other than that, on this interpretation, the main use of the threat of trial by the ICC would be mainly that, a threat, forcing a country to conduct its own trial as the most preferable outcome. An example of how this might work is illustrated by the Pinochet case, which in the end had a salutory effect precisely because the threat of trial resulted in his being returned to Chile to be tried at home. The effect of the affair was to entirely change the domestic politics of Chile in a progressive direction in a very short period of time. And where a domestic trial had been inconceivable a year before, it became by this action unavoidable. This is also the exception that proves the rule. Even though in the end Pinochet got off on a technicality, and won't ever be punished or even fully tried -- the worst possible outcome of this way of proceeding, and why we are told to shun it -- the effect on domestic politics, and domestic legal institutions, has been excellent, better than anywhere else.
If it lives up to this idea, the ICC would fall back into the old, and I think rightly esteemed, pre-1989 human rights tradition, where human rights meant civil rights rather than human rights interventions. And where the main activity of foreign human rights campaigners was to help people to campaign for and improve civil rights in their own countries. That I think is an alloyed good. Every country would be better off if the institutions that guarded its civil rights were stronger, if judiciaries were more transparent and accountable, and if the law were applied equally to the powerful. And using sanctions to strengthen the domestic bases of those institutions make perfect sense. But using them to undercut those institutions by overriding them seems self-defeating to the purpose.
Michael