Churchill was overruled by Harry Truman, who believed in “the beneficent power of law and the wisdom of judges,” and by Stalin, who believed the opposite but was partial to show trials. Nuremberg almost came unstuck when Hermann Goring demolished his overemotional American accuser, Supreme Court Justice Robert Jackson: it took a touch of Rumpole from his British cross-examiner to convict Goring on documents he had personally signed ordering crimes against humanity.

But Nuremberg was “victors’ justice,” and international criminal law is now fairer to the defense. Milosevic could successfully object to trial by any judge from a NATO country. Would he be convicted at The Hague by a panel comprising jurists from (say) Russia, China and Pakistan? That would depend, one would hope, on the evidence–and not on national allegiances of court members. But some appointees to international tribunals are political puppets, and the trial would test the legitimacy of an international criminal court as much as it would test Milosevic. Curiously, he has not been indicted for the crime there is good evidence that he ordered–the Vukovic hospital massacre of 260 Croatian patients and nurses back in 1991 (for which the U.S. State Department branded him a war criminal the following year). Nor has he been indicted for complicity in the crimes of Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, because much of this evidence lies in signals intelligence intercepts that Britain and the United States have refused to make available to the Hague prosecutors. The indictment relates to his ethnic cleansing of Kosovo–“Operation Horseshoe”–to which he could run a shaky, but at least arguable, defense.

That the operation itself amounted to a crime against humanity is not in doubt. If not genocide, strictly defined, it was at least a systematic and severe measure of ethnic persecution, contrary to article seven of the Rome Statute endorsed last year by 120 nations (but opposed, ironically, by the United States). Milosevic and his coaccused could argue, however, that the systematic expulsion of the Kosovars did not begin until the NATO bombing, and was a measure of self-defense against unlawful aggression, by clearing potential enemies from sovereign territory. This defense would require the court to rule on the argument, supported by some international lawyers, that NATO’s action was unlawful. They argue that the U.N. Charter forbids violating the sovereignty and territorial integrity of a member state without an express Security Council mandate.

The factual evidence against Milosevic looks convincing: there was the massacre in Racak in January, and the refugee exodus certainly began before NATO first began to bomb. But the charge must be proved beyond a reasonable doubt, and newspaper certainties tend to crumble in the courtroom. The better legal view is that the NATO bombing was not unlawful if it was a genuine and proportionate response as a matter of humanitarian necessity, to stop (or even to punish) an ongoing crime against humanity. But some judges may take a different view of the law, and Milosevic’s conviction at the tribunal in The Hague is by no means a foregone conclusion.

Chief prosecutor Louise Arbour obviously believes in her case, but so do all prosecutors. Her charge carries particular credibility because it was confirmed by a tribunal judge from Australia who is experienced in criminal trials and renowned for his fairness–so it is not “political,” as Russia, China and Greece immediately and irresponsibly alleged. The case may complicate peace negotiations, since it puts amnesty (the United Nations’ favored device–see Haiti) out of the question. Even if a pardon were brokered and accepted, it would be invalid in international law–a good deal of legal learning has developed into a rule that you cannot amnesty or time-bar a crime against humanity. But the indictment does give NATO’s war a new legitimacy, as an exercise in forcing the surrender of a gang of international outlaws.

Milosevic may hide, but the arrest warrant gives him few places to run. If he has courage, Milosevic might actually agree to go have his day in court, with a real chance of acquittal. But his ilk rarely possess this quality. Augusto Pinochet, for example, skulks in the English countryside rather than taking the plane to Spain to face down his few remaining charges. This indictment provides Milosevic with an opportunity to put fledgling international criminal justice to a test that it needs to pass. Do not expect him to rise to the challenge.