Milosevic Travesty Bodes Ill for Trying Hussein

As the United States prepares to transfer Saddam Hussein into the custody of the newly formed Iraqi courts, a watershed event in war crimes justice will resume next week: the trial of Slobodan Milosevic.

Most people have forgotten that the trial of the former Serbian president lumbers on at The Hague. Since the case began in February 2002, a tangle of bureaucratic setbacks has mired the trial in costly delays. Milosevic is accused of 66 counts of human rights abuses, from violations of the “customs of war” to genocide. After 298 witnesses, 30,000 pages of documents and millions of dollars, the case will reach its halfway point this week -- a level of inefficiency that has strained the patience of even the trial’s most ardent defenders.

Though the concept of a war crimes tribunal still evokes a lofty notion of high-minded justice, the reality of the Milosevic case is a stark lesson in the complexity of pulling off such a proceeding. As the world braces for Hussein’s trial, the Milosevic case provides a cautionary tale about the difficulty of implementing war crimes justice.

The Milosevic trial began with ambitious hopes of furthering peace and reconciliation in a war-torn region, affirming international support for human rights and reconstructing the historical record. But Milosevic, regarded by many as the driving force behind the civil war that killed 200,000 people in the Balkans in the 1990s, denies the legality of the tribunal and has undercut its progress at every turn. Acting as his own attorney, Milosevic’s handling of the case risks trivializing the same crimes the court seeks to redress.

Weaknesses in the prosecution’s case have prevented the trial from becoming an easy rallying ground for defenders of justice. After two years of testimony, attorneys have not produced any “smoking gun” evidence of Milosevic’s guilt. Although a number of witnesses have gestured toward Milosevic’s authority over Serbian forces, the chain of command in the fractured Balkan states remains murky, and the leadership of the splintered Serbian forces in Kosovo, Bosnia and Croatia hard to resolve.

When trial resumes July 5, its credibility will face even greater strains. Milosevic has announced his intent to call a staggering 1,631 witnesses, including U.N. Secretary-General Kofi Annan and former President Clinton, in his defense.

To finish in the 150 days he has been allotted, Milosevic would need to question 10 witnesses a day, a pace that would turn the courtroom into a revolving door of diplomats, dignitaries and press.

And if Milosevic’s cross-examination of retired Gen. Wesley K. Clark, former commander of NATO forces in Yugoslavia, is any indication, their appearances would probably become heated face-offs.

Last December, Clark testified about Milosevic’s authority over Serbian troops. In his cross-examination, rather than refute specific points of Clark’s evidence, Milosevic seized on every ambiguity in Clark’s testimony. In one instance, Milosevic scolded Clark for mischaracterizing a negotiation between Serbian and U.S. officials: “Gen. Clark, it’s exactly the other way around. I’m going to remind you.”

His handling of victims of the violence -- villagers who witnessed the murder of friends and family members -- was no gentler. After one witness recalled gruesome scenes of mangled bodies and corpses with their eyes cut out, Milosevic focused his cross-examination on matters that paled in comparison with the atrocities: the presence of resistance fighters in the area and whether the witnesses’ family members had ever associated with the groups.

These cross-examinations do little to discredit the evidence against Milosevic. Instead, they serve a broader purpose of undermining the court as a whole. By confronting each witness and introducing questions about ulterior motives and clouded memories, Milosevic has steadily chipped away at the sanctity of the system of justice.

The diversion tactics also dilute the overarching power of the accusations against him -- the legacy of grotesque war crimes involving abuse, torture and mass graves. Amid the legalese, four-language translations and grandstanding by Milosevic, the visceral power of these atrocities gets lost. In its place, the sterile courtroom is distorted into a theater of the absurd in which Milosevic intimidates witnesses and the institution itself flounders for legitimacy.

Serbs have lost patience with the proceedings. Once war-weary and eager for reconciliation, the angry crowds that ousted Milosevic in 2000 have swung in the opposite political direction. Since December, a strong nationalist backlash has taken hold. The top contender in the current presidential election is a former ally of Milosevic. And in a symbolic show of support for the former leader, the Serbian parliament recently authorized the use of taxpayer funds to pay Milosevic a stipend for his defense costs and reimburse him for expenses, including postage and travel for his family.

Meanwhile, Western audiences have tuned out. The case has become a familiar story of a botched job by a U.N. bureaucracy that few are following, with a notable exception. A group of Iraqi legal experts recently visited The Hague to learn about prosecuting war criminals. The 10 dignitaries -- led by Salem Chalabi, who will coordinate the Iraqi tribunals -- sought to benefit both from trials like Milosevic’s and from their missteps.

In drawing up initial plans for Hussein’s trial, Iraqi courts have opted for the opposite model for the tribunal: local authority, limited scope and a clear time frame.

But adopting a different structure will not resolve the fundamental problem that confronts the Milosevic case. The rule of law requires allowing the accused the chance to defend himself. Milosevic has leveraged this opportunity to challenge the court’s legitimacy, attack the North Atlantic Treaty Organization and allege a vast conspiracy against him.

Hussein’s trial will face similar risks. The former Iraqi leader will accept legal counsel and, notably, the legal team that his family has assembled includes the French attorney Jacques Verges, who formerly counseled Milosevic. Hussein’s lawyers are unlikely to overlook the history of U.S. cooperation with his regime during the periods in which the most flagrant human rights abuses allegedly occurred. These questions could prove troubling as the U.S. transitions from an occupying army to a provider of security.

The timing of these challenges also is particularly difficult for the U.S., given the revelations of prisoner abuse at Abu Ghraib, questionable treatment of Guantanamo detainees and the administration’s efforts to bypass the International Criminal Court.

The prosecution of Hussein could offer a fresh start for both the U.S. and for the nascent system of jurisprudence in Iraq. Yet the trial also forces us to reconsider the very idea of a war crimes tribunal and the mythology of Nuremberg. As Milosevic’s case has shown, the moral clarity from post-Nazi Germany has been replaced by a struggle for legitimacy of the institutions themselves. And instead of the banality of evil, we are confronted by the bureaucracy of justice.