What now for war trials after Milosevic?
Milosevic's untimely death is a reminder that courts aren't the only tool for justice.
When the team I worked on at the Yugoslav war crimes tribunal which indicted Slobodan Milosevic during the Kosovo war, we were making justice "in real time." Time slowed a great deal after that, coming to a stop this week when Mr. Milosevic died. The Serb strongman responsible for so much bloodshed in the Balkans, the master tactician who grasped instinctively for each chance at power even as his kingdom narrowed to a courtroom, has run out of tricks and out of days. He died not as a master of his country, but a prisoner of international justice.
But this is no cause for celebration. Milosevic's death is a blow to the tribunal, which invested years in its flagship case. When he was transferred to The Hague in 2001, hopes were high that the architect of ethnic cleansing would face justice, and a definitive record of the war would be established. Instead, Milosevic will become a grim footnote. It's hard to say he won, but clearly international law hasn't.
The truth is, we expect too much of international justice. Tribunals have proliferated since the cold war, becoming the international community's tool of choice for responding to mass violence. In the process, law has crowded out other options. We condemn amnesties as unacceptable impunity and insist on the absolute priority of criminal justice. But law is a fragile process with uncertain effects. Claims that international courts deter violence, create a record, or promote reconciliation remain speculative.
The tribunal has failed to deter: Both Srebrenica and Kosovo happened on its watch. To some that just shows Milosevic should have been indicted earlier rather than making him a player in the Peace Accords at Dayton, Ohio. Maybe, but then we might not have gotten a Bosnian peace deal. In any event, military force - not threats of prosecution - made our belated interventions in the Balkans credible.
Milosevic's death means no verdict, denying the tribunal the chance to establish a definitive record. Yet this only highlights the problem with expecting international justice to play a truth-telling role in the first place. Courts don't write histories; prosecutors go for conviction, not a record. Indeed, one problem with the prosecution's case was that it tried to tell the whole story of the war and drowned in its own sprawling narrative.
Nor has the tribunal contributed to regional reconciliation. Few Serbs accept the tribunal's legitimacy. Former Yugoslavia's other communities may praise the tribunal when it convicts their enemies but not when it convicts one of their own. In Bosnia, reconciliation was never going to be easy, but the tribunal has failed to create common ground among its peoples.
And what are the costs? International trials are slow. They are expensive, drawing resources from other initiatives. More fundamentally, fetishizing law narrows our options for supporting transitional societies. Trials are important, but it's wrong to prioritize convictions over peace and stability: Sometimes insisting on arrest can destabilize fragile states.
Yet without missing a beat, international law turns from disappointment to the next indictee who is key to everything. Now that Milosevic is dead, focus has shifted to Bosnian Serbs Radovan Karadjic and Ratko Mladic as the key players who must be brought to justice. I, too, hope they are tried, but only if it contributes to regional stability, not because outsiders need a villain in the dock.
Some interpret Milosevic's death in a cell as a metaphor for justice, but international criminal law does not work that way: Milosevic died an alleged war criminal, not a proven one. In our haste to reaffirm international justice after his death, let's remember what his life shows about the limits of that project. What can tribunals do, and what can't they? The answer is mixed. Courts can produce individual justice, but not necessarily international justice. Their ability to deter war, define truth, or promote reconciliation is unproven.
Yet the international criminal law paradigm continues to dominate our thinking. Milosevic was no strategist; he only wanted another day in power, and another. What do we want? So far: Commitment to one-size-fits-all justice and an end to politicking, but not a strategy for using law as one tool among many in responding to war.
A comprehensive strategy would incorporate amnesties (including a UN Security Council pardon power), truth commissions, exile for entrenched leaders and lustration for mid-level officials, and civil compensation. It would prioritize domestic processes - and have the courage not to insist on trials in countries that aren't ready.
And it would recognize that war is still the best way to combat war crimes: The energy expended on tribunals might be better invested in building consensus on robust, timely intervention when crimes are being committed rather than seeking punishment afterward.
Most of all, international law needs a dose of humility. We should reexamine the attractive but empirically dubious shibboleth "no peace without justice." Peace without justice happens all the time. Justice is a rare bird, and agreement on what justice means is rarer still. But peace and stability - without which justice seldom flourishes - are within the reach of a flexible response that upholds law yet does not abhor alternatives.
â€¢ Timothy Waters was a member of the team at the International Criminal Tribunal for the Former Yugoslavia that drafted the original indictment of Milosevic. He currently teaches international criminal law at the University of Mississippi.