Global Policy Forum

By Jeffrey Donovan

The war-crimes trial of former Yugoslav President Slobodan Milosevic has gone on for almost four years. The trial of former Iraqi dictator Saddam Hussein has gotten off to such a slow start that some fear that it, too, could drag on and on. Indeed, trying former heads of state is no simple task. It involves lengthy legal proceedings, but also delicate diplomacy and political will. But recent years have seen progress in global efforts to bring to justice former leaders accused of serious crimes.

It's never been easy to bring to justice former tyrants accused of atrocities. But legal action itself is becoming much more common. A decade ago, virtually no former heads of state of state or government were on trial for war crimes or crimes against humanity. Today, there are a number of such cases, stretching from Africa and Europe to the Middle East and Latin America.

"Certainly, there's been a movement in the last decade or so whereby you had first the two ad hoc tribunals for the former Yugoslavia and Rwanda; you now have the permanent International Criminal Court in The Hague; and then you have mixed national and international bodies like the special court for Sierra Leone, the courts in East Timor, and now in Cambodia as well. So, certainly, there's been a growth of these tribunals designed to ensure that there isn't impunity for grave international crimes," says John Jones, a British international lawyer who has worked extensively on war-crimes cases in The Hague.

Elusive Justice

But justice still often remains elusive -- even as efforts to administer it have multiplied. Perhaps the swiftest case in recent years was that of Rwandan former Prime Minister Jean Kambanda. Arrested in 1997, a United Nations-appointed court convicted Kambanda of genocide in 2000 and handed him a life sentence for his role in mass killings in 1994 in his African country. But the closure of that case stands in contrast to several other legal efforts against former leaders that remain unresolved.

Four Years And Counting

After more than four years, former Serbian and Yugoslav President Milosevic is still on trial at The Hague. Saddam Hussein's trial in Iraq also appears fraught with problems that some fear could prolong it indefinitely, despite a wealth of evidence against the former dictator.

Jones noted that one key obstacle to quickly trying a former leader for war crimes and similar misdeeds is the burden of proof. He says the legal concept of "command responsibility" is now widely accepted, but it remains difficult and time consuming to prove a government leader bears responsibility for crimes committed by military or other personnel in the field.

"And on the one hand, that's quite understandable, because they concern events covering a vast period of time -- perhaps two or three years -- in lots of different municipalities and different areas, involving all sorts of crimes in which allegedly all sorts of people are involved either as victims or as perpetrators," Jones said. "Particularly when you're dealing with crimes of command responsibility, where it's alleged that the accused had control over various unites or brigades or battalions, you can imagine that the amount of documentary evidence and all evidence that's presented at the trial is absolutely enormous." Hussein's trial by an Iraqi court also faces the burden of documenting evidence linking him to the 1982 killings of some 140 Shi'a north of Baghdad.

Due Process

But the Baghdad proceedings, which are due to resume on 29 January, also face two other obstacles common to these kinds of trials: namely, problems of ensuring defendants are provided due process, as well as challenges to the legitimacy of the court itself. Hussein's trial has been marred by both problems. His legal team has argued, first of all, that the court has no legitimacy, since it was set up under U.S. occupation and not by a sovereign Iraqi government. Some say the legitimacy questions represent a serious challenge to the trial.

"The crimes that Saddam is alleged to have committed are very, very serious," says Reed Brody, a lawyer with the international justice program of Human Rights Watch. "The proof against him is very, very strong. [The trial] could be providing a wonderful opportunity to present to the world the truth about the crimes of his regime. And instead, because of the way the tribunal has been set up, and because of the perceived lack of independence, Saddam is turning all this to his benefit." Last week, fresh questions were raised about the Iraqi court's legitimacy after its chief judge resigned following domestic and international criticism that he had been too soft on Hussein in court.

Ensuring Security

Then there are due-process issues. At least two members of Hussein's legal defense team have been killed. And one of his lawyers, former U.S. Attorney General Ramsey Clark, was not allowed to fully address the court last December, as he could not speak Arabic.

Clark also argued that a fair trial is impossible without ensuring the security of the defense attorneys and their families. "Your honor, I have not been afforded a meaningful opportunity to present this matter, and I consider it a denial of the right to affective assistance of council," he said in court. "You've given me practically no time. The defense cannot participate in this case until there is protection in place for these lawyers and their families."

Experts say due-process violations threaten not just the legitimacy of a trial, but its ultimate goal: peace and reconciliation. John, the lawyer in The Hague, says ensuring due process may take a long time, but is worth the effort. "The Milosevic trial has been complicated by the fact that he has been representing himself, and at the same time the court has been to a certain extent imposing counsel on him, and also having 'amicus curiae' -- friends of the court -- who are there to ensure that the accused receives a fair trial," he says. "And the fact is that also in the Milosevic trial, you have three indictments joined together; you have one for Kosovo, one for Bosnia-Herzegovina and one for Croatia. And that's also meant that it's an extremely long process."

Meanwhile, there are efforts to try former leaders elsewhere in the world, but they could be a long way from completion as well. Former Chilean President Augusto Pinochet and former President Alberto Fujimori of neighboring Peru both face legal proceedings of uncertain duration.

Other Candidates For Justice?

And human rights advocates are actively seeking legal action against ex-dictators Charles Taylor of Liberia and Hissene Habre of Chad. But their ongoing efforts remain hampered by yet another obstacle: the governments of the neighboring African countries Nigeria and Senegal are sheltering both men, respectively.