A Death in The Hague: The Milosevic Trial and the Rule of Law Commentary
A Death in The Hague: The Milosevic Trial and the Rule of Law
Edited by: Jeremiah Lee

JURIST Guest Columnists Henry King, Jr., a former prosecutor for the Nuremberg war crimes tribunal now at Case Western Law School, and David Crane, former Chief Prosecutor of the Special Court for Sierra Leone now at Syracuse University College of Law, say that despite the death of Slobodan Milosevic while on trial before the International Criminal Tribunal for the Former Yugoslavia at The Hague, his prosecution was worth the time and effort as a demonstration of the rule of law serving truth and justice…

The recent passing of Slobodan Milosevic brought shock and disappointment to all who were associated with his ongoing war crimes prosecution in The Hague. Regardless of how one feels about the trial itself, the gaping hole left by this death in establishing the truth and a just and appropriate end to his trial, will remain; leaving a sense of frustration for the victims and a possible further cause for Serbian nationalists. Could Milosevic’s death be his ultimate victory over justice?

Our sense is that it could, unless we stay focused on the rule of law and in continuing the process of international justice, even as critics of international criminal law and supporters of Milosevic begin to consider various options in capitalizing on his death for political purposes. This all plays into Milosevic’s political antics of characterizing himself as a lone Serbian standing up to the international community, defiant to the end. This could be an unfortunate legacy of the International Criminal Tribunal for the Former Yugoslavia, an asterisk next to its record, prompting the question "is justice really served when the key indictee dies?"

This is not the first time death has pulled a war crimes indictee from the firm clutches of justice. At Nuremberg Herman Goering, in 1946, by his own hand, used death to escape his justly rendered execution by the International Military Tribunal. In Sierra Leone, Foday Sankoh died in international detention during the pretrial phase of his upcoming prosecution on seventeen counts of war crimes and crimes against humanity. There was disappointment then, raising again the question—was it ultimately worth the effort?

Naysayers will harp on this question over the next few weeks. Our answer to the cynics is that it is worth the effort at any cost, and that is the bandage which we place over that wound caused by Milosevic’s death. The current tribunals, delivering justice in The Hague, Arusha, and in Freetown are not perfect, but, along with the International Criminal Court (ICC), they represent mankind’s efforts in facing down the beast of impunity that continues to roam the earth.

International criminal justice has made significant strides in enforcing international norms that will eventually corner the beast and begin to return the rule of law to the dark corners of the world. In general, what are they?

First, we now have developed jurisprudence over the past ten years that runs almost the entire gamut of legal issues, initially raised at Nuremberg. This jurisprudence from the current three international tribunals will provide a powerful legal response to current and future atrocity and assist the ICC with its important mandate.

Secondly, there are now workable and efficient models, sanctioned by the international community, to prosecute the likes of Goering, Milosevic, and Sankoh. These models are the ICC and the regional hybrid international tribunals, such as the Special Court for Sierra Leone. Under the principle of complementarity, coupled with domestic courts, these models are both mutually supporting and provide a flexible response to the next human tragedy, and the first line of defense against this important battle that must ultimately be won against impunity. We have the law and the infrastructure in place to move forward.

Despite Milosevic’s death, the rule of law, regardless of what paradigm it is used in, has to be the pathway civilization must take if it hopes to advance. Without it, fear, terror, and anarchy will undermine mankind’s ultimate goal of a secure peace and its quest for freedom, a freedom that allows a people to live and prosper in their own cultural environment. Freedom from want and fear is a powerful response to the ideals of the terrorists today.

Thus, the death of another war crimes indictee should not be an occasion to raise doubts, despite the disappointment caused in that death, but to strengthen our resolve to stay the course and to continue mankind’s quest for justice. In the 60th anniversary year of the end of the Nuremberg trials, we must continue its principles now embodied in today’s international criminal law.

The rule of law is fair, no one is above the law, and the rule of law is more powerful than the rule of the gun. We must use these three ideals to fight the beast of impunity that the likes of Milosevic represented. Milosevic’s death will only be his ultimate victory over justice if we cease seeking the truth and justice for the victims of the Balkan tragedy. It is always worth the cost, and the death of one indictee is not an end, only a part of a process that leads to some type of closure to what took place in the former Yugoslavia. Justice Robert H. Jackson, former Chief Prosecutor of the International Military Tribunal at Nuremberg best summarized this process in his speech, The Rule of Law among Nations, given on April 13, 1945 to the American Society of International Law in Washington, DC:

You cannot in human experience rush into the light. You have to go through the twilight into the broadening day before the noon comes and the full sun is on the landscape; we must see to it that those people who hope are not disappointed, by showing them the processes by which that hope must be realized—processes of law, processes of slow disentanglement, from the many things that have bound us in the past.*

* Proceedings of the ASIL 10-18, in 31 American Bar Association Journal 290-94 (June 1945).

Henry T. King, Jr. is U.S. Director of the Canada-U.S. Law Institute, Professor of Law at Case Western Reserve University School of Law and a former prosecutor at the Nuremberg Trials, 1945-46.

David M. Crane is Distinguished Visiting Professor of Law, Syracuse University, College of Law and the former founding Chief Prosecutor of the international war crimes tribunal in West Africa known as the Special Court for Sierra Leone, 2002-2005.

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