The first was to put the world on notice that crimes against human rights would not go unpunished. The second was that the sovereignty of the state would no longer be accepted as a shield for those who violated the human rights of individuals. The third was that even a head of state could no longer pit his duty to preserve the state against his duty to respect the human rights of his subjects. The first objective was unexceptionable, for the defence of human rights is a key element of the UN charter, but the second and third were intended to serve not judicial, but political ends. That is what made it imperative that Milosevic be found guilty. The ICTY had convicted others of war crimes in Bosnia, and at least one senior Bosnian Serb leader had confessed to his crimes before it and received a lengthy sentence. But he would have been the first head of state to be held accountable for crimes against humanity committed to protect the integrity of the state he ruled. Milosevic’s conviction was therefore an essential requirement for speeding the death of the nation-state and completing the demolition of the principles that underpinned the Westphalian state system for 400 years.
Letting Milosevic go for want of sufficient evidence would have dealt a huge blow to the attempt to gain judicial legitimacy for the dismantling of nation-states. That was why, in a court where other cases had been decided in weeks, Milosevic’s trial dragged on for five years. It was also the reason why, about 15 months ago, when the prosecution was winding up a case that seemed far from convincing, an American jurist suggested that Milosevic’s right to enter a plea in his defence should be waived and the judges should go straight to the sentencing phase of the trial.
The trial of Milosevic was therefore political from the word go. This looks like an unjust accusation till one remembers that the ICTY is not strictly speaking an international court of justice. It was set up by the American government. Its first headquarters were in Chicago and most of its staff was American. It only shifted to the Hague later to reinforce its credibility as an impartial; judicial body, and was enabled to do so by gaining a retrospective sanction from the UN. The ICTY is, above all, not the International Criminal Court, which was set up by the UN about two years ago. Significantly, the US, which is the prime mover of the ICTY, is not a signatory to the charter of theICC. The ICTY is therefore the judicial analogue to the US and UK’s ‘coalition of the willing’ for the invasion of Iraq. That was why Milosevic refused from the very beginning to accept the jurisdiction of this court and treated it with a measure of contempt. He knew that it was not he but the nation-state that was on trial.
The nation-state was put on trial a second time when Saddam Hussein and the senior members of his staff were dragged before an Iraqi court packed with Kurds and Shia judges to stand trial for executing the male members of the village of Dujail in 1982, razing the village to the ground and destroying its crops. After initially refusing to recognise the court’s jurisdiction, Saddam suddenly went on the offensive two weeks ago and claimed squarely that it was an act of collective punishment meted out to a village that had committed an act of treason by trying to ambush and assassinate the head of state when the nation was at war. To treat this as an ordinary crime akin to a schoolhouse shooting was to pretend that the sovereignty of a nation-state is a myth and the duty of the sovereign to defend it against attack by the means he or she deemed most expedient a dangerous delusion.
This attempt to use laws and judges to undermine the legitimacy of the nation-state is not therefore a byproduct of an attempt to mete out justice. It is instead designed to deprive the nation-state of its hitherto unquestioned monopoly of coercive force and its hitherto undisputed right to decide when and how to use it. That power is to be transferred at best to international institutions like the UN, but is at present sought to be appropriated by the US in its attempt to replace the Westphalian/UN-based international order with an American Empire. By dying, Milosevic has had the last laugh. It remains to be seen now how Saddam will face this challenge.
