Criticism and conspiracy theories have followed the March 11 death of former Yugoslav President Slobodan Milosevic at The Hague. Does Milosevic’s death suggest a need for modifications to the international tribunal process? What does his death demonstrate about the credibility of his trial and the legitimacy of international criminal courts?

“The Hague” often connotes some nebulous arbiter of internationally recognized principles of right, where dictators and criminally vicious soldiers get their comeuppance at the hands of an amorphous apparatus of justice. While Milosevic’s death has swiftly receded from the public consciousness after a high-profile Belgrade funeral, his bungled trial suggests that the complex international institutions of post-war justice merit closer scrutiny.

The Hague is the permanent site of the International Court of Justice (ICJ), established by the 1945 UN Charter. The ICJ regularly arbitrates disputes that are international in the literal sense – between nations – in the form of binding rulings and advisory opinions that recommend UN action, as in the recent high-profile case of the Israeli barrier in the West Bank. The ICJ does not address war crimes. The United Nations has formed special tribunals to prosecute these crimes. The International Criminal Tribunal for the former Yugoslavia (ICTY) has the authority to prosecute persons – not organizations or political entities – for genocide, “grave violations” of the Geneva Conventions, “violations of the laws or customs of war,” and crimes against humanity on the territory of the former Yugoslavia since 1991. The International Criminal Court (ICC) was established in 2002 to replace the ad hoc tribunal system with a permanent institution. The United States and China, among other states, have not ratified the treaty establishing ICC jurisdiction. The court is still in its infancy.

Until Milosevic died of a heart attack (unprescribed blood pressure medication was found in his system, although medical reports have rejected speculation of suicide or poisoning), the ICTY was responsible for his trial. It is a huge institution, with more than 1100 permanent staff members and a budget of over US$276 million in 2005. While the UN Charter specifically gives the General Assembly the power to establish tribunals, the ICTY was formed by a 1993 resolution of the Security Council, which acted upon its broad authority to “take measures to maintain or restore international peace and security.”

Milosevic claimed that the ICTY’s existence consequently had no legal basis. This was one prong of Milosevic’s self-formulated defense. Using a prison office furnished with a phone and fax machine and court-appointed legal advice to the tune of US$650,000 per annum, Milosevic turned the trial into a protracted, and occasionally provocative, defense of his own version of history. Milosevic’s desire to present 1600 witnesses in his own defense and repeatedly emphasize the alleged illegality of NATO action against his government forced the ICTY to make an uncomfortable choice: deny Milosevic the ability to fully defend himself, or let him turn the trial into an interminable infomercial. By compromising – foreclosing discussion of NATO action while still allowing hundreds of defense witnesses – it effectively seemed to do both.

Some incremental changes might have helped the trial avoid such a distasteful result. The drug found in Milosevic’s system has fueled conspiracy theory despite the medical reports; prisoners will surely not be permitted to take unprescribed medications in the future. More important, the Milosevic case is instructive in the problems of launching wide-reaching prosecutions in an effort to establish clear historical documentation. Rather than merely highlight particular war crimes for which Milosevic was responsible, ICTY prosecutor Carla Del Ponte (preceded until 1999 by Louise Arbour) sought to prove that Milosevic pursued a genocidal campaign to obliterate Yugoslavia and establish a Greater Serbia. The breadth of the allegation simply gave Milosevic more minutiae with which to quibble and more opportunities to mention the ostensibly criminal acts of the NATO forces that intervened to stop that genocide. In this case, the effort to clarify the historical record merely allowed the defendant the ability to obscure it. More circumscribed charges will help future prosecutions.

But much of the problem is inherent in the ICTY. Its self-declared accomplishments of helping to heal the wounds of war and promoting “respect for the Rule of Law across the former Yugoslavia” are inextricable from the question of its perceived legitimacy. Rather than advance reconciliation in Yugoslavia, the ICTY seems to have created a popular narrative that the West orchestrated a politically motivated show trial against a wrongly deposed leader. Major US media sources have opined that the proceedings have a distasteful air of “victor’s justice.” And indeed, the ICTY is fundamentally not a neutral institution. In the oft-quoted acknowledgment of NATO spokesperson Jamie Shea in May 1999, “NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, … we want to see war criminals brought to justice, and I am certain that when Justice Arbour goes to Kosovo and looks at the facts, she will be indicting people of Yugoslav nationality. I don’t anticipate any others at this stage.” Most of the ICTY’s funding comes from discretionary spending by the large NATO countries through the United Nations. NATO and EU forces in the former Yugoslavia are responsible for apprehending war crimes suspects (some of whom remain at large). Despite its noble purpose of holding war criminal to account, the ICTY is an institution of the great powers.

Noble intentions notwithstanding, then, The Hague is a place where agents of the former Yugoslavia can formally receive punishment but cannot formally seek restitution. We know that Serbian nationalist political and military leaders merit the former more than the latter, and such naked atrocities as the Srebrenica massacre provide compelling public evidence of their guilt. Nonetheless, the legal proceedings surrounding the 1999 Kosovo crisis casts serious doubt upon the impartiality of international institutions of justice. The Federal Republic of Yugoslavia (FRY), which has since become Serbia and Montenegro, filed a 1999 complaint with the ICJ alleging that NATO had bombed illegally targeted civilian institutions and infringed upon Yugoslav sovereignty. The ICJ did not decide the matter until December 2004, when it denied its own jurisdiction over the case because the FRY – excluded from the United Nations until 2000 – was not a party to the ICJ statutes when it filed the complaint. It is unclear why this seemingly basic jurisdictional judgment required more than four years. More important, if this jurisdictional rationale prevents agents of the FRY from seeking redress in one UN tribunal, then it could arguably preclude them from being prosecuted by another.