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We Are Not the World

How to try Milosevic.

Now that Slobodan Milosevic is behind bars, not everyone is celebrating the "triumph of human rights" and "universal justice." Various commentators are having second thoughts, not about Milosevic's guilt but about the legitimacy of the Hague tribunal and "universal jurisdiction" in general. For one writer in The Washington Post, nearly everything is wrong with the tribunal--interminable trials, few verdicts, exorbitant costs. For Russian observers, the arrest is another example of the tyranny of Western "humanitarian politics." For the influential Die Zeit in Germany, Milosevic's fate is a triumph not of justice but of power. For Henry Kissinger--what else would we expect him to say?--universal prosecutions turn justice into political witch-hunts.

These second thoughts illustrate the precarious legitimacy of international justice. Universal justice violates old ideas of what justice is. To do justice is to do it in the name of a particular community: a republic, a kingdom, a distinct polity. (This idea has no stronger defender than the United States, which, while supporting universal jurisdiction for Milosevic, fiercely insists that the only justice with legitimate jurisdiction over American citizens is American.) Universal justice, by contrast, acts not in the name of a community but in the name of an entity--the international community--that is almost certainly a fiction. It reflects a longing to define some evil as so unquestionable, so beyond doubt, that the entire human race can agree on its proscription. Universal justice, therefore, is supposed not merely to enforce moral universalism but to bring into being the sentiments on which its legitimacy depends. This is what shrouds the procedure in doubt. One person's "universal jurisdiction" is another's "victor's justice." What is infamy to one observer--certainly to this one--is to another a pardonable crime of state.

Which is why I can defend Milosevic's trial, whatever the outcome, but not on the terms offered by most of my fellow liberal internationalists. They present his trial as the inevitable linear descendant of a process of internationalization of justice that began at Nuremberg. This is a mistake. First of all, it misremembers Nuremberg, which was seen at the time (and not just by unrepentant ex-Nazis) as a national exercise in victor's justice. Secondly, history is not a tidy accomplice of liberal designs: In the week after Milosevic was flown to The Hague, the courts in Chile adjourned the Pinochet matter sine die. The International Criminal Court is reefed on American objections. History is not going anywhere, still less in a liberal direction, unless liberals argue their case with greater clarity and circumspection--and not on the grounds of an inexorably spreading morality. The best justice is national, rooted in national traditions of legitimacy, procedure, and language. And the best rationale for international justice is that it steps in when national justice faces a crime that is too political, too massive, too difficult, to try in its own courts. International justice should be a default jurisdiction whose legitimacy depends entirely on the inability or incapacity of a national court to take on its obligations.

Such is the case with Serbia. Not even those who opposed Milosevic's extradition denied that it would have been impossible to try him at home. There wasn't a single judge in the Yugoslav system who did not owe his career to the man. He had poisoned every well, including the wells of justice. In such a case, only The Hague would do. But there is also a risk in moving justice to The Hague. It is the risk of using Milosevic's trial to vindicate principles other than one man's guilt or innocence. The Milosevic trial will not vindicate the universality of conscience. Nor is it a truth and reconciliation commission on the Balkan wars. Its only purpose is to establish whether this particular human being did specific wrongs to specific people in distinct places--justice in its most prosaic, precise, and ordinary form.

Milosevic is charged, after all, neither with being an offense to right-thinking human beings nor with being a tiresome opponent of Western hegemony--as Russian and Serbian defenders keep saying--but with specific crimes against specific persons in small villages with names like Mala Krusa, places that you do not forget if you have been there, because of the smell of death in June 1999 and the children's clothing strewn about by families in flight. The victims have absolutely no need of our tears, still less of a show trial with a foregone outcome. They do not even need justice, since most of them are dead. But it would be good for their descendants if there were disclosure (I did not say closure). Their particular moments of horror need to be written down and demonstrated "beyond a reasonable doubt" in a system of justice that is as indubitably hard, clear-sighted, and exact as we can make it.

That will not be easy. Those who fear that Milosevic will turn the trial into a circus are almost certainly correct. His day in court will stretch into months, and he will use the disembodied limelight of The Hague to smear his victims and any American or European government officials who had the misfortune of negotiating with him. Of course this will be embarrassing. Richard Holbrooke can't be looking forward to his subpoena from the defense counsel. Nor can Wes Clark or Joschka Fischer. Everything I did, Milosevic will proclaim, was done with tacit nudges, winks, and covert approval from the hypocritical West. I am your dirty secret, he will say. There are lies in this, and a smidgen of truth as well, and the disclosure of the whole tangled tale will be embarrassing. But justice is often an embarrassment. If Milosevic wishes to prove that the West was complicit in his evils, let him try. If there is truth in this, let us hear it.

It will be particularly interesting to know what intelligence was turned over to the tribunal. This is perhaps the most underreported and interesting development of all: the most secretive agencies of national governments collaborating in limited forms of intelligence-sharing with an agency of the United Nations. The sharing of state secrets with a tribunal--and we have no idea how much has been given to them-- represents a new moment in the history of the Western nation-state. But intelligence evidence will also prove embarrassing, for a conviction will require more than promissory notes from the CIA and the DIA. It will require evidence that Western intelligence overheard explicit orders from Milosevic far enough down the chain of command to disprove his obvious line of defense: that he had never heard of places like Mala Krusa and could not have cared less if he had.

For all the criticism of The Hague, some of it justified, it is certain that Milosevic will get a fairer trial there than he would have at the hands of his own citizens. There are more justifiable concerns about whether Serbs themselves will have access to the rituals of justice they need. Of course, it would have been better to have him tried by his own people in his own land: Legal legitimacy proceeds from the idea that you can judge only what you truly understand, and only Serbs can truly understand this man. And it would have better served the pedagogical functions of justice as well. The message of his trial is really wasted on those who watch from The Hague. The people who need to learn from it are in Belgrade, Nis, and Novi Sad. But once justice is done in The Hague, it won't be seen to be done in these places.

Such justice, done abroad, will not be cathartic. Yet catharsis through trial is mostly a fantasy anyway. As with O.J. Simpson, so with Milosevic: The trial will not unify. It will divide. Half of Serbs will get on with their lives, while the other half will half-listen, if only to confirm what they already believe. A trial does not change minds so much as reinforce what people always thought they knew. Its business is not catharsis, comfort, or storytelling. Its business is truth. What justice can do is establish--if only in the drone of evidence, testimony, affidavits, court exhibits, photographs, grimaces of witnesses--that certain things really did happen. One does not have to make a fetish of forensic truth to believe that, when it is all over, some facts will be established "beyond a reasonable doubt." That is enough.

Yugoslavians--that vanished race--did not know what crimes the Ustashe, Partisans, Nazis, and Italians committed in World War II. Because the Titoist regime denied the very possibility of a multifaceted search for truth, the people of the Balkans lived in a half-life of fantasy, propaganda, and lurid semi-sexual ethnic innuendo. Out of this mass of relativist lying came the return of the repressed, fantasies of revenge for imagined wrongs. What The Hague might do is simply establish--in sober, boring detail--who did what to whom and when and how. Call this hope our last residual fantasy of justice. But it is the most basic. The truth of the Balkans is not in the eye of the beholder. It is there to be established by justice. We will know what we must know. And when we know, justice will be done.

By Michael Ignatieff, Director of the Carr Center for Human Rights Policy at Harvard University's Kennedy School of Government.

By Michael Ignatieff