Napolitano e le foibe

Perché Napolitano non ha ragione

When Slobodan Milosevic died, more than four years into his trial for war crimes, newspapers around the world said that he had cheated justice. It would have been more accurate to say that he had cheated injustice. Had he lived, the judges would have been faced with an unpleasant dilemma: either to find him not guilty, thus casting a lurid light upon the past activities of their employers, the powers that had brought the tribunal into being in the first place, or to find him guilty and to sentence him to a long prison term on evidence that would not have justified a fine for illegal parking.

As John Laughland shows in this short, lucid and well-written book, the International Criminal Tribunal for the Former Yugoslavia in The Hague was little more than a kangaroo court, though without the very real advantages of that kind of legal establishment, namely speed and economy. The trial of Milosevic cost about $60 million, and the transcript ran to 50,000 pages. These facts alone irresistibly bring to mind Einstein’s remark when he was told that 100 Aryan scientists had signed a letter condemning his theory of relativity: if they were right, he said, one would have been enough.

The tribunal made up its own rules as it went along, and then broke them if they proved inconvenient to the prosecution. The judges were men plucked from well-merited obscurity into the world limelight. It allowed the merest tittle-tattle, of the I-heard-it-from-Smith-who-had-it-from-Jones variety, as evidence. When the presiding judge, Sir Richard May, fell ill and resigned four years after the trial started (he may not even have been compos mentis at the end of his reign), the trial was not stopped, as the court’s procedure required, but another judge was drafted in who could not possibly have mastered the evidence, if for no other reason that, in the adversarial system, it is not only the verbal, but the non-verbal communication of the witnesses that is taken into account.

Milosevic was, at a very late date, refused the right, fundamental according to conventions on human rights, to defend himself, though he had a degree in law and had demonstrated, with an intelligence and grasp of the issues far superior to that of his accusers, that he was well able to do so. To force counsel upon him towards the end of the trial was little short of denying him the right to a defence, again in violation of the court’s own rules.

I think Laughland is mistaken when he says that the ‘joint criminal enterprise’, part of the indictment against Milosevic, was an inherently trumped-up charge. A man who orders another to murder and supplies him with the gun to do it cannot hide behind the fact that he did not himself pull the trigger. However, the tribunal played fast and loose with the concept of joint criminal enterprise.

For the charge to stick, there must be evidence of the quality that would convict on any other charge, and the court played fast and loose with the very concept of joint criminal enterprise. This is the basic point of the book: no evidence worthy of the name was ever produced against Milosevic, despite huge expenditure and despite the arbitrary extensions of time the prosecution was granted in the hope that something really damning would turn up to prove its case. Nothing ever did. Does anyone doubt that, had there been knock-down evidence against Milosevic, it would not have been trumpeted around the world? In the event, many of the prosecution’s star witnesses gave evidence that exculpated Milosevic entirely.

I think this is a very important book — far more important than its immediate subject matter might suggest — because it exposes the very odd, unpleasant, combination of unctuous self-righteousness on the one hand and lack of scruple on the other of the current Western political classes, of all political stripes, which itself is a reflection of a deep malaise in society. It is a spiritual sickness that extends far beyond The Hague tribunal: it has entered the fabric of our daily lives.

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The international court of justice (ICJ) did condemn Serbia on Monday for failing to act to prevent Srebrenica, on the basis that Belgrade failed to use its influence over the Bosnian Serb army. But this is small beer compared to the original allegations. Serbia's innocence of the central charge is reflected in the court's ruling that Serbia should not pay Bosnia any reparations - supplying an armed force is not the same as controlling it. Yugoslavia had no troops in Bosnia and greater guilt over the killings surely lies with those countries that did, notably the Dutch battalion in Srebrenica itself. Moreover, during the Bosnian war, senior western figures famously fraternised with the Bosnian Serb leaders now indicted for genocide, including the US general Wesley Clark and our own John Reid. Should they also be condemned for failing to use their influence?

However, Monday's ruling is about far more than Milosevic. Ever since the end of the cold war, the US and its allies have acted like vigilantes, claiming the right to bomb other countries in the name of humanity. The Kosovo war was the most important action taken on this basis and, as such, the curtain-raiser for Iraq. Fought, like the Iraq war, without UN approval, it was waged partly because the international community felt it should have intervened more robustly against Yugoslavia over Bosnia. It now turns out that Serbia was not in control in Bosnia after all. The ruling therefore punctures a decade-and-a-half of lies in support of the doctrine of military and judicial interventionism.

The ICJ, indeed, operates on a radically different philosophy of international relations than that which inspires the ICTY. Unlike the ICTY, the ICJ is not a criminal court and claims no power of constraint over states. Its jurisprudence is based on the anti-war sovereignty-based philosophy of the Nuremberg trial and the UN charter. In the international system, born out of the second world war, war is illegal except in a very restricted cases. States have no right to attack other states, not even on human rights abuse claims. This position is based on the understanding that there are no war crimes without war, and that war always makes things worse.

Mere anarchy was loosed upon the world when the cold war ended and the US sought to create a unipolar world system by destroying the old one. After the 1991 Iraq war, the US and Britain claimed the right to bomb Iraq to protect the Kurds and Shias, which they did for 12 years. Nato bombed the Bosnian Serbs in 1995 and Yugoslavia in 1999. The ICTY, created in 1993, operates on the basis of this doctrine of interventionism, which has come to its ghastly conclusion in the bloodbaths of Iraq and Afghanistan.

Created and controlled by the Great Powers, the ICTY, like its sister courts for Rwanda and the new international criminal court, corrupts the judicial process for political ends, the most important of which is to support the US's supposed right to act as the world's policeman. The new ICC, created by Britain, also seems to operate on the basis that white men do not commit war crimes: its prosecutors are currently investigating two local wars in Africa while turning a blind eye to Iraq. Only when that hideous strength which flows from the hypocrisy of interventionism is sapped, will the world stand any chance of returning to lawfulness and peace.

· John Laughland is the author of Travesty: the Trial of Slobodan Milosevic and the Corruption of International Justice