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The Monster in the Dock

February 9, 2002


THE HAGUE: In the courtrooms at the International Criminal Tribunal for the former Yugoslavia you find the Euro-utilitarian furnishings and sober drone of a Dutch insurance company, which is exactly what the building housed until a few years ago. The defendants, too, are surprisingly ordinary, deprived of whatever strut and menace they had when they were lords of the Balkans. The other day I looked in on the trial of one Stanislav Galic, who reminded me of my high school swimming coach. Mr. Galic is accused of commanding the Bosnian Serb sadists who turned the streets of civilized Sarajevo into a shooting gallery, shelling families as they queued for bread or attended funerals. The trial, like most trials, is a tedious accumulation of detail, the bookkeeping of heartbreak. Hours are spent pinning down the precise location of a tram at the moment sniper bullets pierced its windows, hitting a woman and her 4-year-old daughter. This is where the banality of evil meets the banality of justice.

Next Tuesday the chief among the monsters of Yugoslavia begins his turn in the dock. Slobodan Milosevic, the former president of the former Yugoslavia, the author of three horrible wars of ethnic cleansing in the heart of Europe, and now a sulky, self-pitying defendant, goes on trial as a war criminal.

You might think all of this would be a bonanza for an American administration seeking to assure the world, in particular the Islamic world, that American power can be a force for good. The United States was instrumental in delivering these men to justice - many of them, including Mr. Milosevic, on President Bush's watch. The trial is also a reminder that the West did (after much dithering) send warplanes to save the lives of Muslim Bosnians and Muslim Albanians from the incited wrath of their Serbian neighbors.

And the calm, fastidious ministrations of law here exemplify the "non- negotiable demands of human dignity" that Mr. Bush described in his State of the Union speech as the heart of America's mission in the world. Mr. Milosevic will be treated to a trial no tyrant, no terror-master, no rogue regime would stand for, a trial in which the outcome has not been ordained. At a time when resentment of American power festers not only in the Arab world but in the Waldorf-Astoria, to judge by the hectoring at the recent World Economic Forum, this is an opportunity for the United States to glory a little in its moral superiority.

Curiously, this is a bonanza the administration has chosen not to reap.

No one thought to write an applause line into the State of the Union address mentioning America's role in bringing Mr. Milosevic to justice. So far the White House seems just slightly more enthusiastic about this trial than Mr. Milosevic himself, and Mr. Milosevic has done everything short of mooning the judges.

What's missing here? It's tempting to say this is just another manifestation of the Bush administration's instinct to go it alone, like dropping out of the Kyoto global warming treaty, but it is not nearly so simple.

Probably one factor is that, in the Bush lexicon, Yugoslavia stands for the wrong kind of American intervention - peacekeeping, nation-building, do-gooder foreign policy driven more by compassion than by our national interest. Grudgingly, Mr. Bush has accepted the inherited duty to stick with NATO in policing the Balkans, though there is still a residue of scorn for the idea that this is a meritorious use of America might.

But the main reason you have not heard the administration crowing about Mr. Milosevic is that this trial represents the high-water mark of a rising world enthusiasm for international criminal courts. The specialized tribunal on Yugoslavia and a similar court that is litigating the genocidal slaughter in Rwanda have helped convince 139 nations that the world needs a permanent International Criminal Court to judge atrocities committed in the name of war. The idea is that a standing court would develop a pool of legal expertise and credibility in these difficult- to-prosecute crimes, that it would serve as a check on cyclical vengeance, and that it might even give pause to some future monster.

Fifty-two of those signatory nations, including many of our closest allies, have formally ratified the treaty creating the court; when that number hits 60, perhaps within a year, the court is born. The Clinton administration signed the treaty, saying it still needed improvement. Mr. Bush, prodded by the Pentagon and backed by Congress, is strongly against ratification and vows to have nothing to do with it; the administration is still discussing whether to launch an active campaign to undermine the court, or merely keep a chilly distance from it.

This is not an easy call. The fact is, a lot of Americans, and not just Bush Republicans, have misgivings about the prospect that an American could be dragged from under the shelter of our Constitution and tried before an international court. A number of people who publicly endorse the international court privately admit that some aspects of it give them pause.

Like the tribunal, the permanent court would employ a hybrid legal system, lacking some features Americans take for granted. There is a three-judge panel in place of a jury, and two can convict. Prosecutors can appeal an acquittal, which U.S. law regards as double jeopardy. The roster of judges is international, and draws on some countries you may not think of as bastions of judicial integrity - China, to pick on one.

For all that, American jurists who have participated give the court here high marks. Patricia M. Wald, a respected federal judge who recently completed a two-year appellate tour on the Yugoslavia tribunal, where she shocked her colleagues by throwing out three convictions for weak evidence, told me she would have no qualms about seeing an American put on trial here. "I'm a skeptic of everything, and I would watch very carefully," she said. "But I think with all the checks and balances, I wouldn't be uncomfortable."

The graver fear is that a permanent international court, with a broader license and vaguer accountability, would become a forum for mischievous anti-Americanism. The new court is intended as a tribunal of last resort, for countries unable (like Rwanda) or unwilling (like Yugoslavia) to handle their own colossal messes. The court is supposed to step aside when countries agree to investigate allegations against their own citizens. But the decision to prosecute would rest with prosecutors and judges ultimately accountable to an amorphous assembly of everyone who signed the treaty. American negotiators fought unsuccessfully for some stronger safeguards, like a requirement that the U.N. Security Council, where America has a veto, be required to sign off on indictments.

The administration worries that American soldiers or American officials deployed abroad would be ripe targets for politically motivated prosecutors. The next thing you know, Henry Kissinger will be a few cells down from Mr. Milosevic, standing trial for war crimes in Vietnam and half a dozen other venues, as the writer Christopher Hitchens proposed in a polemic last year.

In the real world, though, Americans have little to fear, with or without a permanent international court. Why? First, because the countries that care about war crimes tend to be liberal democracies that have enough to do without global grandstanding, and second, because America's diplomatic, economic and military leverage is a strong disincentive. When Mr. Milosevic sneers at the tribunal here as "victor's justice," he is not entirely wrong.

"No international tribunal will ever hold Russia to account for Chechnya, or China for Tiananmen Square or Tibet, let alone the U.S.," said Gary J. Bass, author of an unsentimental book on the politics of war-crimes tribunals. "This is an international implement that's going to be used by stronger powers against weaker powers. So why are we afraid of it?"

Certainly America-haters will try to use an international court against us. Let them try. They are likely to get as far as Mr. Milosevic got when he exhorted the prosecutor here to charge the United States with war crimes for its bombing campaign against civilian Belgrade.

We have something to lose by shunning the court for its imperfections. First, the tribunal can still assert jurisdiction over Americans and allies, whether we ratify or not, so it is probably a good idea to do as we have done in The Hague, sending judges and prosecutors who will shape the institution to our higher standards. Second, it's not hard to imagine that we would find the court useful in our war on terrorism, when we get tired of processing all the bad guys ourselves. And third, if you will forgive a split second of idealism, it is a way to engage the world with something other than precision-guided munitions.

The Bush administration is standing on principle. The price of that is, America will be standing on the sidelines.

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