The trial of Slobodan Milosevic is in trouble. Delays, mistakes, Milosevic's failing health and the sheer size of the charge sheet mean it has taken two years to get to the halfway point in the trial - the end of the prosecution case. On 5th July Milosevic starts his defence, and don't expect a mea culpa: the former Yugoslav president is likely to come out with all guns blazing. For a start, he has demanded that Tony Blair, Jacques Chirac and Bill Clinton appear in the witness box. This is probably not because he expects them to help his defence, but because he wants to humiliate them for several hours before a global television audience.
The problem with the Milosevic trial is that it is really three trials in one: indictments for crimes in the wars in Croatia, Bosnia and Kosovo have been bolted together into one mega-trial. The result has been a legal juggernaut with 66 separate counts, nearly 300 witnesses and much confusion. Milosevic has chosen, perfectly legally, to represent himself, and the strain has shown. More than two months of court time have been lost through his bouts of high blood pressure and flu. The vast case has generated over 400,000 pages of exculpatory evidence which prosecutors handed (or forklift-trucked) to Milosevic in February. As Milosevic runs his own defence, he must read it himself. If he reads at three pages a minute, 12 hours a day, seven days a week, it will take him over six months.
Time is not the only problem. Prosecutors have produced a lot of evidence linking Milosevic with war crimes, but none showing him actually ordering an atrocity. More glaringly, they have failed, at least in public court, to prove the most serious charge of all: genocide. It is likely that on this charge he will be found not guilty, a serious embarrassment for prosecutors.
Even leaving Milosevic aside, the UN's war crimes court in The Hague is overburdened. Last summer, the security council decided that the court should finish all trials by 2008 and all appeals in 2010. Hague officials do not believe this is possible, though one solution has been to encourage plea bargains - the process by which a defendant pleads guilty in return for a reduced sentence. This device dramatically cuts court time, since there is no need for a trial, but it has produced wild variations in sentencing. A Bosnian Serb who admitted beating to death five Muslims in a detention camp was jailed for just eight years, surely the lightest sentence ever imposed on a mass murderer. Another Bosnian Serb officer, who admitted organising the destruction of a Muslim village, was jailed for ten years. Other judges have taken a harsher line: prosecutors recommended a maximum 20-year sentence for a Bosnian Serb officer who admitted his part in the massacre of 7,000 Muslims at Srebrenica in 1995 but the judges said no, and jailed him for 27 years. The result has been to leave sentencing policy a lottery.
The problems of The Hague stem from a lack of supervision by the UN security council, the court's supposed boss. In fact, council members can't seem to find the time to watch over their creation, with the result that the court has begun making its own rules. Furthermore, underneath such technical hitches, deeper controversies persist. Far more than international treaties, or supranational organisations such as the UN and EU, a war crimes court tears away at national sovereignty - it even has the power to jail a head of state. And an international court must, of necessity, operate outside normal democratic controls. While the Hague tribunal is configured along Anglo-Saxon lines, it lacks the key Anglo-Saxon safety valve of a jury.
If you concluded from all this that the war crimes process is flawed, you would be right. But if you think it is doomed, you would be wrong. International war crimes trials are here to stay and, on balance, this is a good thing.
The great achievement of the Hague tribunal has been to show that war crimes trials can work. In just over ten years of operation, it has shown that international conventions can be transformed into workable laws, different legal systems can be meshed together, and prosecutions can stick. While the fog of war has saved many individual soldiers from being jailed for atrocities, their commanders have paid the price. Scores of Balkan warlords, mostly Serb, have been jailed for horrendous crimes and a string of legal firsts, including the first conviction for rape as a war crime, have been accomplished.
All this has been done, moreover, on the cheap - the total cost of all the UN war crimes trials ever held works out at about two weeks' occupation costs in Iraq. The court is also financially scandal-free, with clean audits - not something every UN department can boast.
Nevertheless, while the Hague tribunal has shown that war crimes justice can work, it has not shown that it always will. The future for war crimes justice is to be found on the other side of The Hague, in a white office block - the headquarters of the international criminal court (ICC). The ICC, which came into action in 2002, has 94 member states and a structure that closely resembles that of the Hague tribunal, except that, at US insistence, it is independent from the UN. The ICC too has many drawbacks. It can only take a case if a state's own legal system has failed to deal with it. Also, the ICC is not really a world court, since its laws apply only to member states and their territories. America remains opposed, and its diplomats are trying to persuade states to give Americans immunity from the ICC - currently around 40 have indicated that they will do so.
But while big states have little to gain from the ICC, little states see things differently. They back the ICC, not because it is perfect, but for the same reason legal systems are tolerated anywhere else - because the advantages outweigh the disadvantages. The Democratic Republic of Congo and Uganda have already asked the ICC to investigate atrocities, complaining that these are committed by troops from neighbouring countries beyond the reach of conventional justice. South American states have flocked to the ICC for a different reason - they see it as an insurance policy against the return of the juntas.
The ICC is the only serious alternative to America making up international law as it goes along. A trial has yet to be held at the ICC, but already a subtle change in the world order can be detected. In the future, there will be two worlds - one consisting of nations inside the ICC, the other outside. Within the ICC magic circle, states should benefit from the minimum standard of international security that this court guarantees.
Of course, dangers lurk. The experience of The Hague shows what happens when a court is left too long to its own devices. But the ICC will work, not as the key to the kingdom, but as a necessary tool in a dangerous world.
