By Timothy Garton Ash (THE GUARDIAN, 16/03/06):
The death of Slobodan Milosevic should mark an end and a beginning. The end of a long period in which a Europe of multi-ethnic empires has been bloodily transformed into a Europe of nation states, most with clear ethnic majorities. The beginning of a period when the sovereignty of such nation states is no longer absolute and rulers know that they will be called to account, before an impartial international court, for crimes they commit against their own people or against their neighbours.
First, the ending. As the anthropologist Ernest Gellner observed, looking at those historical maps of Europe with ethnic groups marked in different colours, a Kokoschka picture has become a Modigliani. Instead of Kokoschka's endless mixings of different pigments, we have more or less distinct blocks of a single colour. Milosevic was but the latest in a long line of European leaders who steered their countries towards this ethnic separation, for a mixture of motives, through war, diplomacy, ethnic cleansing and the shedding of much blood.
There are still significant Kokoschka corners in Europe to worry about and hope for. Kosovo, where Milosevic's wars of the Yugoslav succession began and ended, is now up for negotiation of its final status. In eastern Europe there are still Moldova, Ruthenia, and ethnically mixed parts of the Russian federation and the Caucasus. Even in western Europe there are issues around the Basque country and Catalonia, Wallonia and Flanders, Ireland and Corsica. In some of these places we have until quite recently seen nationalist terrorism (Eta, IRA, KLA). In all of them you hear the old nationalist saw: "Why should we be a minority in your country when you could be a minority in ours?" None the less, the Kokoschka-to-Modigliani transformation is far advanced. And the pressures on ethnic nationalists to pursue their agendas by peaceful means have increased, thanks partly to the growth of bodies such as the EU, Nato, the Council of Europe and the Organisation for Security and Cooperation in Europe.
There are thus some grounds to hope that the Balkan wars of the 1990s were the last great frenzy of the kind of violent ethno-nationalist politics that, in fits spread over more than a hundred years, dismantled the remains of the Ottoman, Austro-Hungarian, German and (to some extent) Russian empires. Milosevic was the single politician most responsible for this Balkan frenzy, but not the only one. Franjo Tudjman's Croatia has sneaked away with less of the blame than it deserves, rather like Austria after 1945. The Bosniaks -Muslim or post-Muslim Bosnians - were undoubtedly the main victims of both Serbian and Croatian aggression, but they were not always whiter than white. The Albanian Kosovans were also victims, but resorted to violence to advance their cause.
So no one is suggesting that Milosevic was the only bad guy in this brawl. Certainly not Carla del Ponte, the prosecutor of the Hague tribunal. One of the successes of recent months was getting Croatia to surrender its alleged war criminal Ante Gotovina to The Hague; the EU had made this a condition of moving towards accession negotiations for Croatia. Now the EU is, quite rightly, blocking Serbia's road to accession until it finds and delivers the Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. Bosniak and Kosovan fighters are up for trial too.
The conduct of the tribunal has been far from perfect. It was a mistake to roll all the charges against Milosevic into one huge case. The fact that four Serbs have now died in custody in The Hague, and that Milosevic was apparently using drugs not prescribed by his courtapproved doctors, suggests a lax security regime. It's odd that Ramush Haradinaj, the former Kosovo Liberation Army leader and, briefly, Kosovan prime minister, is out on bail and allowed to participate in public life in Kosovo while being arraigned on war crimes. That gives the impression of double standards.
More broadly, it remains unsatisfactory that the Hague tribunal was established only after some of the worst atrocities in the former Yugoslavia had occurred and is concerned with just one (former) country. This gives credibility to those charges of "political justice" or "victors' justice" that always arise with trials of deposed political leaders, be they Nazi leaders arraigned at Nuremberg, Erich Honecker, Augusto Pinochet or, most recently, Saddam Hussein.
Still, it's a beginning. And we already have something better in place: the international criminal court (ICC), also in The Hague. It started work in 2002, and more than 100 states have ratified its statute, which covers genocide, war crimes and crimes against humanity. (The crime of international aggression is also supposed to be covered once it has been properly defined - a very tall order and something that has long eluded international lawyers.) The ICC has a Canadian president, Ghanaian and Bolivian vice-presidents, and an Argentinian chief prosecutor. It is pursuing cases in Uganda, Congo and Darfur, and has issued its first arrest warrants, for leaders of the Lord's Resistance Army in Uganda. In sum, this is a serious attempt to meet the accusations of double standards and retrospective, political justice by creating a transparent, impartial, genuinely international court, administering international law explicitly in force at the time the crimes are committed.
The ICC also has big problems. Its statute allows it to act only when states themselves are "unwilling or unable genuinely to carry out the investigation or prosecution". As a result, gangster states such as Sudan can pretend they are willing and able to do so. Worse still, some of the world's largest and most powerful countries have not joined it, instead clinging to an older style of national sovereignty. The boycotters include Russia, China and the United States. The US has gone one step further in its opposition. It has pressured a number of ICC member states to sign bilateral exclusion agreements that protect US personnel from prosecution. This is a disgrace from the country that has helped more than any other to build the whole edifice of international law since 1945.
The ICC is the best international court that we have to deal with new Milosevicstyle atrocities - the best the world has ever had - and we need to keep urging the US to be true to its own best traditions. The Bush administration certainly won't. President Clinton signed the ICC treaty in the last hours of his presidency, although he knew full well that his successor and Congress would not ratify it. Perhaps the next president Clinton (if it is she) might give this another go.
Here is the court we should in future call "the Hague". With such a court, every tyrant everywhere must know that national sovereignty does not give him the right to perpetrate whatever atrocities he likes within the frontiers of his own state. There are limits. Every latter-day Macbeth should hear Banquo's ghost walking beside him, whispering: "Remember the Hague."