The Long View 2002-02-19: Show Trials

Thomas Sowell wrote a book that this blog entry brings to mind, The Quest for Cosmic Justice. Sowell argued that the search for ultimate justice always seems to end in even greater injustice. I tend to see Sowell's argument in Thomistic terms now. We fallen creatures cannot ensure perfect justice, because we are not perfect. We have to pursue worldly justice, because that is all we are really capable of. Furthermore, it isn't really our job. Vengeance is mine saith the Lord.

Slobodan Milosevic eventually died in prison, four years after John wrote this. Presumably, he has gone to his just reward.

Show Trials

I knew that the International Criminal Tribunal for the Former Republic of Yugoslavia (ICTY) was jinxed when I heard Mary Robinson explaining the indictments. Once the president of the Irish Republic and now the UN High Commissioner for Human Rights, she is one of those invaluable public figures whose mere presence signals that something stupid is happening. In this case, she explained that, no, no one could plea bargain with the accused, notably not with Slobodan Milosevic, who was still in power and arguably willing to trade exile for amnesty. She insisted to some plainly flabbergasted journalists that the ICTY existed to do Justice, universally and irreformably.

In due course, President Milosevic was thrown out of office by his own exasperated people. Eventually, he was delivered to the Hague to stand trial for war crimes, crimes against humanity, and the violation of various Geneva Conventions. Speaking in his own defense, last week he used the televised proceedings to turn the tables on his accusers. NATO, he said, had deliberately targeted civilian infrastructure during the Kosovo War, acting with wanton indifference to civilian casualties. He said that the West caused the breakup of Yugoslavia by the meddlesome recognition of the independence of the breakaway Republic of Croatia. Milosevic demanded that the leaders of the nations responsible for these things be called to testify.

It was quite a performance. The sufferings of the Serbs over the last ten years were largely of his own manufacture, but there was just enough truth in his description of the policies of NATO and the West to make it impossible to dismiss. His oratory did nothing to answer the well-founded charges against him, but it did give heart to his supporters back home, and indeed to the enemies of international order everywhere. This is not a good thing.

It's also not the first time this has happened. The model for the ICTY was the tribunals established by the victorious Allies after the Second World War. The particular precedent for the trail of Milosevic was the Nuremberg Trial of the surviving Nazi leadership in 1946. Few men were ever hanged with greater justice than the defendants in that proceeding, but the star of the show was Hermann Goering.

The prosecution did not quite lose control of the trial, but those who saw the proceedings were shaken. Goering spent most of the Nazis' dozen years in power shooting morphine, dressing up in opera costumes and stealing works of art; he was almost too zoned to notice when Germany lost the war. Confinement awaiting trial on capital charges, however, cured him of his addictions and concentrated his mind wonderfully. He forcefully argued that the court had no legal foundation and that the Allies' defense of human rights was hypocrisy. As with Milosevic today, his defense did not really address the charges, but it laid the groundwork for a future defense of the regime. The only book I have ever read by David Irving was a biography of Goering, which says the prosecution did lose control of the trial. (Irving has his own blog, by the way; you have to wonder about these people.) The effect of Goering's performance was limited, because it had to pass through the press. That, of course, was before such events could be televised.

The theoretical basis for international tribunals is still often shaky, particularly when their jurisdiction is mandatory, and most especially when the law they are supposed to apply is criminal. However, the international system has slowly been answering the questions about sovereignty and the sources of law that the existence of such courts raise. An issue that has never been addressed, at least to my knowledge, is this: when the defendants are former heads of governments or responsible ministers, they simply are not subjects, but sovereigns.

International criminal law is based on the limitation of the traditional scope of sovereign immunity, under which heads of government could not be held liable for their actions in any foreign court. The limitation is not unreasonable, but it does not change the fact the sovereigns are still sovereigns. Officials who have exercised sovereign power in a way contrary to international norms are not being tried for breaking a law, as ordinary subjects would be before a domestic court. Rather, sovereigns are tried for bad policy. Furthermore, they are tried by their peers, by other sovereign powers. Even the world-sovereign that sometimes flickers into existence in international forums is still no higher in the scheme of things that the sovereign being tried.

Usually, when defendants are tried in criminal cases, they are not permitted to argue that the law they are accused of breaking was a bad idea. That, however, is precisely the kind of argument that the sovereign officials must be permitted to make. They have been called to account in a political dispute, so naturally they talk politics back. Their appeal is not only to the tribunal, or even chiefly to the tribunal. They speak to their own constituents.

I am not one of those people who think that the idea of international law is incoherent. There is even something to be said for international criminal tribunals; someone has to hang these people. Nonetheless, these prosecutions are a disaster looking for a place to happen.