Justice in The Hague
August 31, 2004

Expect some fireworks Tuesday when Slobodan Milosevic takes up his own defense at the war crimes tribunal in The Hague. Over the last few years, as the prosecution presented evidence that the former Serbian strongman orchestrated Europe's worst crimes of the late 20th century, he used every opportunity not only to challenge the facts but to tell the Serbian audience back home that they were all victims of an international conspiracy. Now this grandstanding will take center stage.

Critics contend the process is a failure that is harming the cause of justice for the Balkan wars, rather than helping it. But although the trial is complex and difficult, it is progressing normally by almost every criterion that makes a criminal trial fair and efficient.

The judges and prosecutors are acting independently and upholding the highest professional standards. The rights of the accused are meticulously respected.

Perceptions of the trial have been distorted by a dual impatience: to see Milosevic convicted quickly and to see Serbia transformed from a hotbed of aggressive nationalism into a functioning democracy. Frustrated by lack of progress on these issues, critics have made a convenient scapegoat out of the International Criminal Tribunal for the former Yugoslavia.

Many Western observers expected the tribunal to rapidly confirm the accepted wisdom that Milosevic was responsible for war crimes, crimes against humanity and even genocide in the former Yugoslavia in the 1990s. Yet they failed to appreciate the important difference between determining political responsibility in the realm of public opinion and establishing criminal responsibility in a court of law.

There are few written records linking Milosevic to the commission of crimes. To prove the charges, the prosecution has instead been forced to rely on oral testimonies about seemingly extraneous matters and to carefully construct the chain of command linking the accused with the specific crimes charged. This approach may appear sterile to those whose idea of an effective trial is shaped by Hollywood drama or by the Nuremberg trials, where abundant documentary evidence linked the defendants to Nazi war crimes.

The Milosevic trial has gone on a long time already, and it still has a long way to go. But Milosevic's own ill health has caused delays amounting to several months' worth of trial days. The court could have appointed a lawyer for Milosevic, who chooses to represent himself, to enable the trial to continue in his absence. But, considerations of fairness made them decide otherwise. The trial's slowness is evidence of its fairness, not its failure.

Many Western critics believe that the trial is increasing Milosevic's popularity and impeding democracy in Serbia, but this is manifestly wrong. The Socialist Party of Serbia, of which Milosevic is the president, received only 7.6 percent of the vote in the last parliamentary election, in December 2003. Opinion polls show that Milosevic is the most unpopular political figure in Serbia.

It is true that ultranationalist and authoritarian ideas continue to appeal to many Serbian voters. Many of those who supported Milosevic's Socialist Party now back the Serbian Radical Party, whose leader Vojislav Seselj is awaiting trial in The Hague. The party's candidate won 45.5 percent of the vote in the second round of the presidential elections two months ago.

But Milosevic's trial has not created the popularity of the radical nationalists. The explanation for their success lies instead with the unwillingness of post-Milosevic governments to open an honest debate about the wars of the 1990s.

Most people in Serbia have not come to terms with the horrific crimes committed in the 1990s, which resulted from policies that they supported. An inflated sense of Serbian victimhood overpowers any sense of moral responsibility. The "ethnic cleansing" of Serbs from other parts of Yugoslavia still disturbs them more than the genocide in Srebrenica and other crimes committed by Serbs.

The Hague tribunal has not altered this mentality of collective denial. Nor can it be expected to; that change must come from Serbia itself. In the meantime, the tribunal's main task is to provide justice for the victims and their families in the former Yugoslavia. That goal is being accomplished, slowly but surely. Those who look only at the day-to-day impact of the Milosevic trial forget that ultimately its success will be judged by whether it can deliver justice, not by how long that process takes or whether it affects Serbia's politics.

Bogdan Ivanisevic is a researcher for Human Rights Watch.

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