LONDON – The War Crimes Tribunal for ex-Yugoslavia that is preparing its case against former president Slobodan Milosevic is sitting on a time bomb, concocted by Milosevic himself. He has made it plain that he is going to conduct his defence on a political level – not by hiring a team of smart lawyers to challenge witnesses’ veracity over accounts that he ordered or sanctioned mass murder, rape and torture, but by mounting a solo political defence that will seek to turn the tables on his Western prosecutors.

He will accuse them of bombing his country in defiance of the Charter of the United Nations. It is they, he will say, who need to defend themselves against legitimate charges of breaking international law. They bombed a sovereign foreign country without the approval of the Security Council, the supreme organ of the UN.

It is going to be a difficult trial and the prosecutors will have to hope that the bench of judges, despite having a strong non-Western component, will rule such a defence out of order. If they don’t the proceedings could well end up as a trial within a trial, an outcome that should have been foreseen when the West chose to bomb Belgrade without a UN mandate.

The great danger with bending the rules of the UN is that it doesn’t always spring back to shape like a rubber band when next you need it.

But something positive will come out of this confrontation, if it forces a debate in the West about the relationship between invasion and bombardment and the cause of human rights. There is a powerful school of thought, marked out by such diverse personalities as Richard Holbrooke, Clinton’s ambassador to the UN, the Canadian writer Michael Ignatieff and the Oxford don, Timothy Garton Ash, that argues that massive human rights abuses strengthen the presumption in favour of military intervention.

But war is war, even if it is launched in a “good” cause and human rights is too often the loser, however stringent the control exercised by democratically elected politicians of their fighting machine. Indeed, if the preservation of human rights is really the first and paramount purpose of policy, the whole approach to the kind of politically impasses that lead to war becomes very different. Simply put, one avoids the recourse to war and leaders are compelled to search for alternative ways of dealing with the situation.

Human rights crises can and should be prevented. They are never inevitable. As Pierre Sane, the remarkable Secretary-General of Amnesty International, has expressed it, “If government decisions to intervene are motivated by the quest for justice, why do they allow situations to deteriorate to such unspeakable injustice?”

The NATO governments which bombed Belgrade are the same governments that were willing to wheel and deal with Milosevic’s government during the break-up of the original Yugoslavia and were unwilling to address repeated warnings about the growing human rights crisis in Kosovo. Six years before the bombing, Amnesty was arguing in public: “If action is not taken soon to break the cycle of unchecked abuses and escalating tensions in Kosovo, the world may find itself again staring impotently at a new conflagration.”

A similar argument can be made for the West’s other great preoccupation during the 1990s – the dictatorial regime of Saddam Hussein, defeated and driven back after an attempted invasion of neighbouring Kuwait. (President George Bush Senior did seek and win the approval of a UN Security Council vote for this action.) It was Amnesty which called for international pressure on Iraq in the mid 1980s, especially after the 1988 chemical weapons attacks by Saddam Hussein’s troops on the town of Halabja, which killed an estimated 5,000, unarmed Kurdish civilians.

Amnesty also drew attention at this time to Saddam’s notorious conduct towards his political enemies, incarcerating and torturing their children. Yet Western governments were then foursquare behind Iraq as it fought a First World War type of conflict of attrition with its neighbour Iran, whom the U.S. could not forgive either for its fundamentalist stridency or for taking hostage the diplomats of the U.S. embassy a few years earlier. The West simply turned a blind eye to Saddam’s human rights violations, while it sold him increasingly sophisticated weapons of war.

Prevention work may be less newsworthy and more difficult to justify to the public than intervention in a time of crisis, argues Mr Sane. “It requires the sustained investment of significant resources without the emotive media images of hardship and suffering”. It’s the hard day-to-day slog of human rights vigilance – using diplomatic means to persuade governments to ratify human rights treaties and implement them at home. It means ensuring there is no impunity and that every time someone’s rights are violated, the incident is investigated and those responsible brought to justice. Not least, it means the speeding up of the establishment of the International Criminal Court, meant to take over from the Yugoslavia War Crimes Court and to have universal jurisdiction, wherever there are crimes against humanity. 

If the West had thought a little more about prevention in the early days of the Yugoslavian conflict, much of the subsequent horror could have been avoided. Now with Milosevic’s trial in the offing the West stands of danger of being hoisted on its own petard. It will be good for it.