Koskenniemi

Between Impunity and Show Trials

When former President Milosevic began his defence at The Hague on Tuesday, 12 February 2002, there was no reason to be surprised by his chosen tactics. By turning the accusing finger towards the West, in particular the members of the North Atlantic Treaty Organization (NATO), for their alleged complicity in first destroying what Milosevic called"mini-Yugoslavia" (Bosnia-Herzegovina) and in 1999 conducting an aggression against his own country, he aimed to avoid conducting his defence under conditions laid down by his adversaries. At the same time, his manoeuvre highlights , once again, the difficulty of grappling with large political crises by means of individual criminal responsibility and gives reason to question the ability of criminal trial toexpress or conserve the "truth" of a complex series of events involving the often erratic action by major international players, Great Powers, the European Union, the United Nations, and so on. The Milosevic trial - like international criminal law generally - oscillates ambivalently between the wish to punish those individually responsible for large humanitarian disasters and the danger of becoming ashow trial.

l .A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 6, 2002, 1-35. © 200 2 Kluwer Law International. Printed in the Netherlands.

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1. II. III. IV. V.

Why Punish? Of Truth and Context A Brief History of History Lessons The Politics of Truth "Show Trial"?

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Max Planck UNYB 6 (2002)

I. Why Punish?
Bringing Milosevic to The Hague has been celebrated as the most significant event in the international efforts to end the culture of impunity, under way since the establishment of the Yugoslavian and Rwandan war crimes tribunals in 1993 and 1994 , the adoption of the Statute of the International Criminal Court in1998 and the commencement of criminal procedures in several countries against former domestic or foreign political leaders. The record of these events is mixed. But there is no doubt that they manifest a renewed urge today to think about international politics in terms of domestic categories. The universalisation of the Rule of Law calls for the realisation of criminal responsibility in theinternational as in the domestic sphere. In the liberal view, there should be no outside-of-law: everyone, regardless of place of activity or formal position, should be accountable for their deeds.' Yet, as Hannah Arendt pointed out during the Nuremberg trials, "[h]anging Goring is certainly necessary but totally inadequate. For this culpability ... transcends and destroys all legal order,'? What shemeant, of course, was that sometimes a tragedy may be so great, a series of events of such political or even metaphysical significance, that punishing an individual does not come close to measuring up to it. In nearly all the criminal prosecutions concerned with crimes against humanity committed during or after World War II, some observers have doubted the ability of the criminal law to deal with theevents precisely in view of their enormous moral, historical, or political significance. The philosopher Karl Jaspers, for instance, wrote to Arendt in 1960, a few months before the opening of the Eichmann trial, pointing to the extent to which the events for which he was accused "stand outside the pale of what is comprehensible in human and moral terms" and that "[s]omething other than law [was]at stake here - and to address it in legal terms [was] a mistake."3 The same argument was heard occasion-

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The description of the campaign for ending the culture of impunity as an aspect of the legalist-domestic analogy is usefully discussed in G. Bass, Stay the Hand of Vengeance. The Politics of War Crimes Tribunals, 2000, 8-36. Quoted in N. Frei, "Le retour du droit en Allemagne. La...