Out of Control

german-foreign-policy.com: You followed the trial against Slobodan Milosevic from the very beginning. What were its main characteristics?

John Laughland: The main characteristics of the trial were its extreme length and general unfairness. Milosevic was indicted in 1999 and kidnapped and taken to The Hague in July 2001. The trial was still going on when he died in March 2006. Indeed, the Prosecution was still applying to call more witnesses, even though it had already called nearly 300 during the two years it took to make its case. In the criminal justice system in England, it is considered a gross violation of defendant's rights if trials last more than 3 - 6 months, and it is obvious that a four year trial is a violation of the right to a swift judgement.

The trial was unfair in almost every respect. The procedures of the International Criminal Tribunal for the former Yugoslavia (ICTY) are very heavily stacked against the defence and they include many practices (such as the admission of hearsay evidence) which are forbidden in civilised Western jurisdictions. After having indicted Milosevic for Kosovo in 1999, the Prosecution added in new indictments for Croatia and Bosnia in 2001 - between seven and ten years after the events themselves. The three indictments were then joined together into one monster trial on the basis that they were linked by Milosevic's general plan to create a 'Greater Serbia' yet this claim was in fact never made formally in any of the indictments, and was withdrawn by the prosecution half way through the trial. Two years into the trial, one of the judges died and this should have caused the trial itself to collapse. Instead, it carried on. Finally, instead of releasing Milosevic as unfit to stand trial (his health was poor throughout) the judges imposed a defence counsel on him. This decision had no basis in law and was therefore the very essence of a lawless decision: it means that international criminal law has now introduced the principle that a man may be tried in his absence and convicted on the basis of defence by a lawyer whom he has not appointed and whom he does not instruct.

gfp.com: In your new book you argue that NATO's war against Yugoslavia and the indictment of Slobodan Milosevic were two sides of the same coin. Why?

Laughland: The indictment was issued at the height of the NATO bombing, in May 1999. Nato had attacked Yugoslavia on the basis that national sovereignty was no longer the basis of the international system, and that instead there existed a 'right of humanitarian intervention' - a right for other states to bomb a country if they believe that human rights abuses are being committed there. The ICTY is based on the same philosophy: according to its statute and law, an international organisation has the right to intervene in the internal affairs of a state. National sovereignty is explicitly cast aside. Many people are tricked into believing that this is a good thing because they believe that states should be prevented from committing abuses. This is true, of course, but the problem is that international organisations can commit abuses too, as Nato unquestionably did in 1999. States are at least potentially subject to control by the populations over which they wield power; international organisations are never subject to any such control. Their power is therefore more, not less dangerous than that of nation states.

gfp.com: It has been claimed that the Hague Tribunal is a successor of the Nuremberg trials. Do you agree?

Laughland: No. The Hague Tribunal is in fact the opposite of the Nuremberg tribunal. It is often forgotten that the principal crime of which the Nazis were accused was the "crime against peace" - i.e. the crime of planning and executing a war of aggression. This was where Nuremberg was truly novel: never before (or since) have state leaders been held criminal responsible for starting a war. The general interdiction against war was immediately incorporated into the charter of the United Nations in 1946. Indeed the original prosecutions at Nuremberg were originally brought in the name of the 'united nations'. For more than four decades after the Second World War, war was illegal except in self-defence and except when authorised by the Security Council. NATO deliberately broke this law when it attacked Yugoslavia in 1999, claiming that there existed a right of humanitarian intervention. But no such right exists in international law and the NATO powers have made no subsequent attempt to introduce one by treaty.

gfp.com: If you compare the Hague Tribunal with the International Criminal Court - do they resemble? What do you think about them?

Laughland: The International Criminal Court (ICC) is inspired by the same supranational philosophy as the ICTY. It is based on the assumption that supranational agencies are wiser and more moral than national bodies. In my view, international agencies are capable of being even more authoritarian than national ones, especially when they believe themselves to be the bearers of superior morality. The constitutional basis of the ICC is more sound than that of the ICTY: the ICTY was created illegally by the Security Council, whereas the ICC was brought into being by a legally ratified treaty. However, my fear is that the ICC will be as much a tool in the hands of powerful states as the ICTY. Currently the ICC is investigating only two obscure wars in Africa, whereas it seems to be ignoring the most important war of recent times, the Anglo-American invasion and occupation of Iraq. As a signatory to the ICC treaty, British officials can and should be indicted by the ICC for their collaboration in the illegal (indeed criminal) invasion of Iraq.