THE HAGUE — 'Courts try cases' - but cases also try courts." In line with this saying, the trial of former Yugoslav President Slobodan Milosevic by the United Nations war-crimes court in The Hague poses a crucial test of the court's effectiveness - in both legal and broader political terms. The way the court deals with Mr. Milosevic, by far the highest-ranking defendant ever brought before it, will strongly affect the way its work is viewed by future generations.
All who work at the court are intensely aware of this "legacy" issue. Judge Patricia Wald, the only US judge on the 14-member bench, explicitly puts the court's work in the framework of the Nuremberg court, established by the victorious Allies in 1945 to try two-dozen top Nazi leaders. She and many others hope that, by building on jurisprudence pioneered at Nuremberg, the Hague court can do even more than Nuremberg did to hold everyone, including national leaders like Milosevic, accountable for atrocities that they committed or organized.
Indeed, court supporters from around the world have said they hope that its judgments will cause rights-abusing rulers everywhere to mend their ways. (This might not happen. A successful prosecution might well lead these rulers to try to cling to power even more brutally.)
The Hague court was established on an ad-hoc basis in 1993, to try those accused of crimes against humanity, war crimes, and genocide in the former Yugoslavia. In 1994, the UN established a parallel court to deal with the anti-Tutsi genocide perpetrated in Rwanda earlier that year. In line with today's international norms, neither court has a death penalty. Even if convicted on all counts, the maximum penalty Milosevic faces is life imprisonment, probably in the Netherlands.
If today's two ad-hoc courts are able to build a legacy of trials that are seen as legally sound, appropriately targeted, and above all fair, then - their supporters hope - that will help provide a strong basis for the work of a future permanent International Criminal Court. The ICC's founding statute was agreed upon in 1998, but it is still nowhere near winning the ratifications of 60 nations required to go into operation.
The Nuremberg court and its present-day descendants have much in common. But there are also huge differences. At the time of Nuremberg, the Allies controlled everything inside occupied Germany, including its population and its meticulously archived public records. The entire docket of trials was completed in less than a year. And throughout that year, there was enough political consensus among the four principal Allied powers - the United States, United Kingdom, Soviet Union, and France - that their leaders were able to decide on a single, broad-reaching strategy for the prosecutions.
All those things - access to people and records, timeliness, and the existence of a strong and unified strategy for the prosecutions - are missing from today's international courts.
When future generations assess the Hague court's legacy, they will be looking not only at the transcripts of the trials themselves, but also their broader political effect. Will this body of trials help, as Nuremberg did, to establish an incontrovertible historical record, and to lay the basis for democracy in nations previously plagued by atrocity and dictatorship?
Lawyers and judges like to claim that their work is fully insulated from politics. That wasn't the case at Nuremberg! There, the identities of the principal indictees and the content of their indictments were all, as prosecutor Telford Taylor wrote in his memoirs, determined along noticeably political lines. But the fact that Nuremberg was "political" does not undermine its achievement. Indeed, as part of a broader political strategy that aimed - in the case of the three Western allies, at least - at rehabilitating Germany as a tolerant and robust democracy, Nuremberg along with other policies like de-Nazification and (later) the Marshall Plan, proved an undoubted success. Certainly, it was much more successful than the punitive policies the Allies used toward the whole population of defeated Germany after World War I.
One key way the Nuremberg trials contributed to German democratization was by continually and deliberately spelling out to Germans who had previously been complicit in Nazi atrocities what the true nature and consequences of the Nazi project had been. Today's Hague court seems, by sad contrast, to have largely neglected the task of "outreach" - sustained dissemination and explanation of its work - to the Serbian and other previously complicitous publics in former Yugoslavia.
The long-term historical "jury" on Milosevic's handover and trial, and on the work of the Hague court as a whole, will be out for many years to come. There still seems some danger that the strong economic and political pressure the NATO nations brought to bear on Serbia's infant democracy to hand Milosevic over may backfire, politically, by undermining the attempts by Serbian and Montenegrin democrats to stabilize their political position.
If that should happen, then the West's "victory" in winning custody of Milosevic would be hollow, indeed. For the key gauge of the Hague court will be measured over the years ahead by the robustness of the democracies in Serbia and the rest of former Yugoslavia.
(c) Copyright 2001. The Christian Science Monitor