What Now for War Trials after Milosevic?
Timothy William Waters
Indiana University - Maurer School of Law; Max Planck Institute (International Law)
Christian Science Monitor, March 2006
When Slobodan Milosevic was transferred to The Hague, hopes were high that the architect of ethnic cleansing would face justice, and a definitive record of the war would be established. His death showed that we expect too much of international justice. Tribunals have become the international community's tool of choice for responding to mass violence. But law is a fragile process with uncertain effects; claims that international courts deter violence, create a record, or promote reconciliation remain speculative.
And what are the costs? International trials are slow. They are expensive, drawing resources from other initiatives. More fundamentally, fetishizing law narrows our options for supporting fragile transitional societies.
Yet the international criminal law paradigm continues to dominate our thinking. A more realistic strategy would incorporate amnesties, truth commissions, exile for entrenched leaders and lustration for mid-level officials, and civil compensation. It would prioritize domestic processes - and have the courage not to insist on trials in countries that aren't ready.
And it would recognize that war is still the best way to combat war crimes: The energy expended on tribunals might be better invested in building consensus on robust, timely intervention when crimes are being committed rather than seeking punishment afterward.
Most of all, international law needs a dose of humility. We should reexamine the attractive but empirically dubious shibboleth no peace without justice. Peace and stability - without which justice seldom flourishes - are within the reach of a flexible response that upholds law yet does not abhor alternatives.
Keywords: international criminal law, war crimes, trials, amnesty, tribunals, ICTY, International Criminal Tribunal for the Former Yugoslavia, Milosevic, Yugoslavia, Bosnia, Kosovo, international law, humanitarian law, cost-benefit, transitional justice
JEL Classification: Z00, P30, P33, N40, K40, K42, K49, K33, K14, K10
Date posted: November 19, 2006