Fri, Mar 17, 2006 - Page 9 News List

Milosevic and Saddam in the dock: A farce

Tyrants, as the Nuremberg courts have shown, should be tried only after they have been comprehensively defeated

By George Fletcher

Trials of war criminals were once serious business. Recall the photographs of Herman Goering and Rudolf Hess sitting glumly in the dock at Nuremberg. Some Nazi leaders were even hanged after short but fair trials.

Nowadays, legal proceedings against the world's most wicked leaders have become farce. The trial of former Iraqi president Saddam Hussein and his Baathist cronies offers an ongoing series of embarrassments. The defendants try one antic after another, and Hussein shows every form of contempt possible except "mooning" the judge. It is hard to expect an outcome that will appear legitimate in the eyes of Iraqis or the world.

Meanwhile, former Yugoslavian president Slobodan Milosevic's trial morphed into a funeral after four boring years of testimony and a sunken cost of more than US$200 million. In Cambodia, the UN and the government have dickered for almost a decade about how to bring surviving Khmer Rouge figures to trial.

The mass killers who took power in the 20th century were doomed to being killed in popular revolts or to being tried for their crimes -- that is, if they did not die in power. Who can be proud that Romania's last Communist boss, Nicolai Ceaucescu, and his wife were shot without even the semblance of a fair trial? The formal trappings of a real court always seem better than instant justice, even if the end result is also death.

Today there are two plausible ways to proceed against a deposed tyrant. A nation could put its own former leaders on trial, as the Argentines did in the 1980s with the generals responsible for the disappearance of more than 5,000 fellow citizens. At the international level, the Nuremberg model remains available to generate further trials, though under the dubious conditions that victorious powers sometimes impose liability for crimes, such as "crimes against humanity" that were not properly defined at the time they were committed.

There was a time when we could see the advantages of both national and international trials. Home-grown trials enabled the local community to work out its grief by participating closely in the process. As judges and juries, the defendant's compatriots could also bring greater sensitivity to the assessment of guilt because they appreciated the tough conditions under which a dictator made his decisions.

Argentina's trial of the generals was a successful ritual in the painstaking transition from military junta to democracy, but the experience ended with weeping self-doubt. Even after conviction, the generals were sufficiently strong to exact a termination of the trials and then a pardon from the succeeding president. Argentine politics is still embroiled in the legal consequences of those trials of 20 years ago.

At the international level, the UN Security Council's decision to establish the International Criminal Tribunal for the Former Yugoslavia was also greeted with great confidence. The tribunal did make several foundational decisions under the leadership of Antonio Cassese. But then the judges had the misfortune of realizing their fondest dream -- trying in their court the arch-villain Milosevic.

It is not clear how the Serbs would have handled Milosevic in a local trial. A lot would have depended on the political party that controlled the court. At the international level, the fear was not of too much politics but of too much law. Milosevic's trial had to be more than fair, it had to be an emblem of UN justice. Thus Milosevic was allowed to defend himself -- a huge mistake in terms of the trial's length and efficiency. There was no limit on the number of witnesses the prosecution called to testify on the same gruesome story of Serbian aggression and brutality.

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