Rough Justice

National Review Online, July 5 2001

The Serbs made a furtive sale and a dirty trade. It was a handover made in exchange for a dollop of aid and a whitewashed reputation. You do not have to be either an admirer of Milosevic or a worrier about black helicopters to find it more than a little distasteful. Last weekend's events in Belgrade and The Hague may have been a short-term victory for Uncle Sam, but, in the longer term, they may come to be seen as a disaster. What they really represented was a triumph for a form of intrusive international jurisprudence that already represents a menace to effective diplomacy and will, in the end, be a threat to the interests of this country. It is worth remembering, after all, that if there is any legitimacy to prosecutor Del Ponte's crusade, it is based on the authority of the United Nations, an organization that has never been notably friendly to the U.S.

Yes, that's right, the U.N., that same collection of moral colossi whose most recent notable achievement in the area of human rights has been the decision that the slave state Sudan represents a better guarantor of basic decency than does the United States. The sad thing about last weekend's drama was that it was all so unnecessary. Milosevic was, mercifully, already a beaten man, a thug at the end of his tether, who seemed destined finally to face the judgment of his own nation, a people that he had led to disaster and humiliation. The trial would have lasted longer than that of Romania's unlamented Ceausescu, and the punishment might have been less, shall we say, immediate, but the consequences would, for practical purposes, have been much the same. Yugoslavia's failed savior would have been finished. Almost as importantly, such a trial would have provided an occasion for his countrymen to confront their own past. With, doubtless, the help of some prompting from outside, the proceedings would have been a valuable chance for the Serbs to contemplate not only the crimes committed by their former leader, but also the horrors in which far too many of them had themselves participated. Milosevic, too, had many willing executioners.

There is a clear danger that removing the trial to The Hague will dilute that message. Handled with anything other than the most exquisite sense of fairness, it may well play into the hands of those who want to portray Milosevic as a martyr, a victim of victors' justice, a hapless scapegoat found guilty only by a kangaroo court. In such a scenario, the real evidence of terrible atrocity would almost inevitably be dragged into controversy and disrepute. The slaughtered tens of thousands would suffer further, grotesque insult. Their corpses would be mocked as tragic accidents and their mass graves as exaggerations. The dead would be left slandered and their memory reduced to nothing more than the bogus prop of a fraudulent show trial, the basis of a poisonous myth that could prove compelling in a Serbia where history too was a casualty of Milosevic's war. The very real chance of such a development cannot be ignored. The rump of the old Yugoslavia is an embattled and broken nation, surrounded by hostile states and, understandably, skeptical about the evenhandedness of NATO's new justice. It is a fertile ground, as we already know, for paranoia and crazed theories of betrayal.

Distance too, will pave the way for another, gentler form of denial, the seductive fantasy in which nobody, neither the Serbs, nor NATO, is guilty. Only the bogeyman Slobodan will be to blame. Safely tucked away in Holland, Milosevic will become the repository for a people's guilt, out of sight, out of mind and off their conscience. In Germany's immediate post-war years the conveniently deceased, and thus equally absent, Hitler fulfilled a similar function for surprisingly large numbers of his former supporters. It is not difficult to imagine the same occurring in Serbia, but more nastily. After all, in the Balkans national myths have a way of turning rapidly rancid, and, unlike in the territory of the fallen Reich, there is hardly anyone on the ground to keep the peace should the desire for revenge become too great to contain.

So if the decision to try Milosevic abroad is an opportunity missed, and a risk taken, what exactly was its point? It cannot have been deterrence. The prospect of a Dutch jail is unlikely to put off any more than the feeblest of dictators-in-waiting. What Milosevic's fate may do, however, is operate as a disincentive to some future despot contemplating a voluntary abdication. In the end, the Yugoslav leader had, of course, to be shoved out of office, but at least even he had the sense to go (reasonably) quietly when the game was up. The Hague has been his reward. Future dictators will draw the necessary conclusions.

In all probability, the real purpose of making such an effort to get hold of Milosevic was something else: It was to make clear that this latest application of international law was for real. To be fair, there was some practical justification for this. If, like the NATO allies, you intervene in the affairs of a foreign country, it is always handy to get a little legal backing, even if you have to make it up. The problem is that, in going along with this, the United States has given further momentum to the efforts of an increasingly assertive international bureaucratic class, prominent in the U.N. and elsewhere, to grab ever more power for itself. Kyoto was one notorious instance, but this is a continuous, relentless process. There will soon, for example, almost certainly be a permanent international criminal court (Iranian judges, anyone?), which will, you can be sure, have a permanent anti-American agenda.

Meanwhile, activist European magistrates have used this era's more expansive notions of international law to start taking it upon themselves to 'investigate' a perceived retired oppressor or two, none of whom, strangely, ever appear to be on the Left. Augusto Pinochet was harassed for years, and there's even excited talk about prosecuting Henry Kissinger, but when it comes to Mikhail Gorbachev, the hero of Afghanistan, Vilnius, and Tbilisi there is only silence. No French magistrate, I suspect, will be bothering Gorby.

President Bush appears to understand the implications of this. Quite rightly, he has made clear that the US will not subject itself to the proposed International Court, but international law has, of late, shown a tendency to turn up in the most unexpected places. The Bush administration will have to make sure, in its understandable enthusiasm to punish the butchers of the former Yugoslavia, that it is not inadvertently setting a precedent for future less savory 'international' prosecutions of, say, US troops on a peacekeeping mission.

Such an outcome really would give Milosevic the last laugh.