JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that what is most important about the trial of Slobodan Milosevic in the wake of his sudden death in jail is not its lack of outcome, but rather the hope its example holds for future justice against other dictators…

The sudden death of Slobodan Milosevic is regrettable in the sense that the judicial process he faced for the crimes he committed cannot be completed. The fact that he faced such a process at all is, however, of surpassing importance.

Milosevic was charged with war crimes, crimes against humanity and genocide, carried out while his regime was in power during the catastrophic break-up of Yugoslavia in the 1990's. The butchery that ensued engulfed Bosnia, Croatia, and Serbia (including tiny Kosovo). Milosevic hovered above all this, directing the bloodshed and eventually incurring the wrath of NATO, which deployed against Serb forces on its first combat mission since creation of the organization in 1949.

In a preview of his natural ability to throw his opponents off, in 1999 Milosevic actually sued the NATO countries in their individual capacities at the International Court of Justice for illegal use of force against his Serbia and Montenegro, including (ironically) a charge for genocide. Requesting the Court to issue an injunction to stop NATO's bombing of Serbia, Milosevic pleaded

The Federal Republic of Yugoslavia is exposed to acts of use of force by which the Kingdom of Belgium has violated its international obligations not to resort to threat or use of force against another State, not to intervene in the internal affairs of another State and not to violate the sovereignty of another State, to protect civilians and civilian objects in time of war, to protect the environment, as well as those relating to free navigation on international rivers, to the fundamental rights and liberties of the individual, to the ban on the use of prohibited weapons and on deliberate infliction on ethnic groups conditions of life calculated to bring about physical destruction of the group. Both military and civilian targets came under attack in the air strikes launched against the Federal Republic of Yugoslavia…. [O]ver 10 000 attacks were made against the territory of the Federal Republic of Yugoslavia. In air strikes were used: 806 warplanes (of which over 530 combat planes) and 206 helicopters stationed in 30 air-bases (situated in 5 states) and aboard 6 warships in the Adriatic Sea. More than 2,500 cruise missiles were launched and over 7,000 tons of explosives were dropped. About 1000 civilians, including 19 children, were killed and more than 4,500 sustained serious injuries….

The Court declined such an injunction, and the suits eventually sputtered out last year. By that time, Milosevic was on trial himself at The Hague before the International Criminal Tribunal for the Former Yugoslavia.

No other head of state had been tried for such crimes in modern history. The Kaiser escaped trial after the First World War by seeking refuge in the Netherlands. Hitler killed himself at the conclusion of the Second World War, leaving only his Number 2 (Hermann Goering) and his henchmen to face justice – which Goering cheated by committing suicide prior to hanging. Italy's Benito Mussolini was mobbed and shot. Japan's Hedeki Tojo faced trial and was put to death (after an unsuccessful suicide attempt), but he was the head of government – the Emperor, as head of state, continued on his throne. The next head of government to face justice was Jean Kambada of Rwanda in 1998, and the next attempt at bringing a head of state to justice was the unsuccessful extradition request lodged by Spain with Britain to try Chilean dictator Augusto Pinochet in 1999.

Consequently, the fact alone of Milosevic's trial is vastly more important than the ultimate outcome of that trial – acquittal, guilt, or, in this case, premature death. That a head of state was forced to face justice for his actions is the precedent that the world needs to take away from all this. One may quibble with the conduct of the trial, its undue length, its manic focus on due process, its treatment of witnesses, its leeway offered the defense, or even its delayed broadcast back to Serbia and over the Internet – all of which have been roundly criticized by many quarters. But, again, it is the FACT of the trial at all which hearkens a true breach in the wall of sovereign immunity that previously shielded despots around the world, encouraging them to act with impunity against their own people and those in neighboring states.

Because of Milosevic's trial, uncompleted as it now is, that sense of impunity should waver in the minds of those who contemplate genocide, war crimes, and crimes against humanity. Milosevic's trial laid the legal groundwork for the new Special Court for Sierra Leone to indict Charles Taylor of Liberia, and issue its decision in the Taylor case explaining his complete loss of immunity from prosecution. The activation of international criminal justice is becoming the rule rather than the exception, with another new court in Cambodia under development, and the permanent International Criminal Court now investigating crimes in multiple African countries, including the still unfolding genocide in Sudan.

Thus, while Milosevic's legacy in the Balkans is a bloody one, and his legacy at the Tribunal itself is one of subterfuge, recrimination, delay, and obstreperousness (providing other courts with lessons from which to learn), his legacy to the future of international criminal law via his trial at The Hague is uncharacteristically one of hope. Hope that brutal dictators receive the message loud and clear that they eventually will be brought to justice for their atrocities if the international community can get its hands on them. And if they receive that message, and it stays their hand from even one genocide or war crime, sparing innocent people, then progress has been made. The years of legal back-and-forth, reams of paperwork, millions of dollars, piles of evidence, and endless amounts of frustration at the trial of Slobodan Milosevic was worth it. That he is now dead is of much less importance.

Michael J. Kelly is Associate Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of The Tricky Nature of Proving Genocide Against Saddam Hussein Before the Iraqi Special Tribunal 38 Cornell International Law Journal 983 (2005), and the book Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang Publishers 2005) with a foreword by Desmond Tutu.
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