THE LONG, slow war crimes trial of Slobodan Milosevic, former Yugoslav president, has been neither as short nor as salutary as believers in international justice had hoped. Moreover, the trial has run into many practical snags.
Last week, just as the prosecution at the International Criminal Tribunal for the former Yugoslavia (ICTY) was preparing, at long last, to wind up its case, the 62-year-old defendant, whose illness had interrupted proceedings a dozen times, fell ill yet again. And the presiding judge, Britain's Richard May, announced that he was stepping down, also for health reasons.
The tribunal's American head, Theodor Meron, says that May's departure should "not have an unduly disruptive effect on any proceedings." But Milosevic may now be able to demand a retrial. And that could conceivably mean abandoning two years' worth of hearings, involving nearly 300 witnesses and 30,000 pages of evidence.
Under the ICTY's rules, a replacement judge can be appointed if one of the three-judge panel dies or resigns in mid-trial. So Meron could order the continuation of proceedings -- but only if the defendant agrees. If Milosevic, who has always refused to recognize the authority of the court anyway, will not agree, the two remaining judges could still decide to continue the trial if it would "serve the interests of justice." They probably will. But Milosevic would have a right of appeal, causing yet more cost and delay.
Charged with 66 counts of war crimes, crimes against humanity and genocide during the Balkan wars in the 1990s, Milosevic is the first head of state since World War II to have to answer for such atrocities. At the trial's opening, Carla del Ponte, the chief prosecutor, declared that it was "the most powerful demonstration that no one is above the law." Human rights groups predicted that it would set a "new benchmark." Nobody wants to throw all that away, especially at a time when the concept of international justice is under fire.
The ICTY, set up in The Hague, Netherlands, in 1993, was the first international court of its kind since the Nuremberg and Tokyo tribunals after World War II. In the years since, ad hoc war-crimes tribunals have been set up for Rwanda, East Timor, Kosovo, Sierra Leone and Cambodia.
Hopes were high that they, together with a new permanent International Criminal Court (ICC) in The Hague, would end any notion of impunity for the chief perpetrators of atrocities -- and help to deter future ones.
But as the proceedings have lengthened and the costs have risen, disillusion has set in. In August, the United Nations imposed a "completion strategy" on both the Yugoslav and the Rwandan tribunals, requiring them to end all trials by 2008 and appeals by 2010. Financing (some $120 million for the ICTY this year alone) will then cease.
Some criticisms of the ICTY are justified. All pioneers make mistakes, and the Yugoslav tribunal is no exception. But other shortcomings are inherent to international courts. The ICTY has had to harmonize different legal traditions, cope with multiple languages (of judges, lawyers, perpetrators and victims), and translate mountains of documents. Most of the cases before it are hugely complex, involving dozens of charges and hundreds of witnesses. Those convicted have a right of appeal against both conviction and sentence, which they always seem to exercise.
Evidence for war crimes is generally hard to come by, and suspects can be more elusive still. International tribunals do not have police powers; they cannot send in sheriffs to make arrests. They rely on the cooperation of foreign governments, which is not always forthcoming.
The ICTY was lucky to have NATO and U.N. forces in Bosnia to help. But 20 of its chief suspects are still on the run, including Radovan Karadzic, the former Bosnian Serb leader, and Ratko Mladic, the general who allegedly organized the massacre of 7,500 Bosnian Muslims at Srebrenica in 1995. Del Ponte has accused Serbia of giving these suspects a "safe haven," and of failing to hand over vital evidence.
Based in The Hague, operating only under international law, and with no judges from the former Yugoslavia, the ICTY has been criticized for its distance from the scene of the crimes, for making victims feel irrelevant and for leading the Serbs, who make up the great majority of defendants, to complain of "victors' justice." Some even blame the court for the nationalists' revival in Serbia -- both Milosevic and Vojislav Seselj, a radical nationalist awaiting trial in The Hague, played a part in the elections in December and the political maneuvering since.
But the ICTY deserves praise as well as criticism. After an admittedly slow and shaky start, it has streamlined its operations and scored some notable successes.
Between four and six trials are being held in shifts every day in the tribunal's three chambers. Of the 94 accused who have appeared before the court, half have been convicted, including Milan Babic, the former Croatian Serb leader. Eight are still on trial, including Momcilo Krajisnik, the Bosnian Serb leader accused of masterminding the Serbs' ethnic-cleansing campaign -- the darkest chapter in a war that left about 100,000 Bosnians dead and forced a further 2 million from their homes. Another 25 await trial; five have died after being charged; and five have had their charges withdrawn. Only five have been acquitted.
The prosecution against Milosevic has agreed to rest its case forthwith, forgoing two days that had been allocated to it. The court has suspended its hearings until June 8, to allow Milosevic the extra time that he had requested to prepare his defense. This will also give time for a substitute judge for May to get abreast of the proceedings.
The court has given Milosevic 150 days to complete his defense. Given a rhythm, on doctor's orders, of around three court days a week, proceedings could last well into 2006.
Will Milosevic agree to a simple continuation of the trial? Officials suggest he has nothing to gain by prolonging things. But if he faces a life sentence anyway, he has nothing to lose either. More grandstanding on a public podium may be far more appealing than rotting quietly in a prison cell for the rest of his days.