The Milosevic Trial: An Inside View

Over at Slate, Julian Mortenson has submitted a series of dispatches from the Slobadan Milosevic trial at the ICTY which offer an up-close-and-personal angle on the 3-plus-years old prosecution of the notorious Serb leader on a series of war crimes charges. International prosecution has an important part to play in accountability for past crimes, for creating a forum for victims to tell their stories, and to provide an authoritative historical account of the atrocities. But I have long believed that its deterrance value is overstated. Mortenson’s account reminds us of the potential downside of long, protracted and much-delayed trials of aging thugs. This excerpt on the genocide at Srebrenica in 1995 is a chilling example of the way in which the formalism of the trial allows Milosevic to legitimate his own position (that the tribunal is illegal) and score political points:

When the testimony turns to Srebrenica, the good-natured joshing ends. It’s a settled matter at the tribunal that the mass murder of more than 7,000 unarmed Bosnian Muslims at the Srebrenica U.N. “safe haven” constituted genocide. Earlier this year, the new release of sickening video clips of the Srebrenica executions jolted The Hague and Serbia—and, many court observers thought, Milosevic himself. So this is a minefield for both men. And while they understate the scale of the killings (Seselj is skeptical that even as many as 1,200 were killed, because “it was impossible for this small group of soldiers to kill so many men by individual shooting”), neither Milosevic nor Seselj deny that what happened was an epic atrocity: Seselj calls it “a great shame on the Serbian people.” But, as they tell it, it certainly wasn’t a top-down crime: “Can anyone claim,” Milosevic asks, “that the authorities in Yugoslavia tried to hush up the crime in Srebrenica?” “That claim is untenable,” Seselj snaps, “We thought it was our legal, political, and moral obligation that the crime of executing Muslim prisoners of war in Srebrenica should not go unpunished.”

Milosevic’s examination is really quite well done. As soon as the question of Srebrenica arose, his mood turned somber, and his gestures became mild, almost delicate, giving off a vaguely scholarly vibe. Whether affected or in earnest, it’s good courtroom theater. Gravely denying any connection between the top Serbian leadership and the events at Srebrenica, Milosevic gets Seselj to repeatedly refer in amazement to the mere five-year prison sentence the tribunal imposed on Drazen Erdemovic, who admitted to personally killing some 70 helpless prisoners at Srebrenica. (They glide over the trial court’s finding that Erdemovic participated only in the face of death threats from his superiors.) It’s all part of Milosevic’s constant chipping away at what he calls an illegitimate, illegal institution. Does it matter in any legal sense whether Erdemovic got a “fitting” punishment for his crimes? Of course not. But rhetorically it’s an effective buttress for his overriding claim that he is the only person in this courtroom with real moral authority.

To a first-time visitor, that would probably be the most surprising thing about the trial. Early reports left the impression that Milosevic wasn’t mounting a serious legal defense against the crimes he is charged with but was instead using his trial as a platform to make a political case against the Western powers most responsible for his fall. It’s been my experience that he’s actually having it both ways. To the extent he can, he’s chipping away at the prosecution’s legal claims while taking every opportunity to score political points (fair or not) for the Serb audience back home—and for history. It is an impressive balancing act.