Two courtrooms, two dictators accused of genocide and war crimes, and both offering the same defense — it's a riveting moment in the history of global justice. But despite the obvious similarities, the trials of Slobodan Milosevic and Saddam Hussein represent two fundamentally different approaches to international prosecutions. And one of them is deeply flawed.
In the Hague this week, former Yugoslav President Milosevic is scheduled to take the floor in his own defense. He faces charges of crimes against humanity and war crimes, as well as conducting a campaign of genocide against Bosnian Muslims — yet an uninformed visitor to the International Criminal Tribunal for the former Yugoslavia would be excused for thinking that Bill Clinton and Tony Blair were the ones on trial. The pugnacious Milosevic claims he was defending his country against illegal interventions by the U.S. and NATO. He has sought delay at every turn. With high blood pressure putting him at risk of a heart attack, he continually demands more time to rest. The judges have finally called his bluff and threatened to hand the defense over to court-appointed lawyers. Faced with losing his best chance to grandstand, the Serbian strongman is feeling better.
Then there is Saddam. Two weeks ago he appeared in a Baghdad courtroom as charges against him were read out in the new Iraqi Special Tribunal. Appearing reasonably fit and well-groomed despite almost seven months of solitary confinement, the former dictator adopted the same approach to the trial as his Yugoslav counterpart. Looking around the U.S.-financed court with a smile, he said: "This is all a theater. The real criminal is Bush."
Both of the accused men are doggedly determined to expose the political underpinnings of their trials and thus turn the table on their captors. But one of these two courts is designed to be immune to such claims.
Milosevic's efforts are destined to fail, for the Yugoslav tribunal, created by U.N. mandate, is both internationally legitimate and objectively fair. It's difficult to imagine the authorities in Belgrade conducting a similarly unbiased prosecution, or one that so carefully protects Milosevic's right to defend himself and even cross-examine victims of his alleged crimes. Milosevic's protestations of unfairness ring hollow.
Saddam's allegations of political bias resonate more deeply. The Iraqi Special Tribunal is not an international court. It was created — and its judges selected — by the U.S.-appointed Iraqi Governing Council. Salem Chalabi, the nephew of the once omnipresent opposition figure Ahmad Chalabi, was handpicked by former U.S. administrator L. Paul Bremer to be its director. The U.S. government funds the tribunal, the fbi helps gather evidence and 20 U.S. lawyers support the prosecution.
Saddam's court appearance was a concession to international law: the third Geneva Convention requires that prisoners of war be either charged or released at the end of hostilities — in this case, the transfer of sovereignty to Iraq. But the only print journalists allowed to attend the hearing were American. Al-Jazeera and CNN were able to film the event, which was carefully timed to coincide with prime-time breakfast television stateside, but were ordered to block out the sound of Saddam's voice. And there were no defense lawyers in the courtroom.
Saddam remains under U.S. lock and key. He may be denied the right to choose his own lawyers, though his first wife, Sajida, has assembled a multinational team, some of whom want to put the U.S. on trial.
The Bush Administration has tainted Saddam's trial already. An international tribunal created by the Security Council would have garnered legitimacy and, in all likelihood, convicted the accused. But instead of an opinion-shaping display of due process and the rule of law that might help restore some measure of trust in the U.S., we have a politicized court with flawed procedures and inadequate protections that could strengthen the perception of the U.S. as a global legal pariah.
All this has happened because the White House worries that international tribunals might prosecute American soldiers or officials. This concern is largely misplaced, since international courts are designed to complement, not substitute, national legal systems. Still unwilling to play by international rules, the U.S. has chosen a kangaroo court over the fair and rigorous procedure in the Hague.
Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia in Vancouver
From the Jul. 19, 2004 issue of TIME Europe magazine