Trying times: after two years and 300 witnesses, harsh lessons emerge from the prosecution of Slobodan Milosevic
By Guy Dinmore and Nikki Tait, Financial Times
Published: Feb 19, 2004
For a trial dogged by delays, yesterday’s news was almost inevitable. Slobodan Milosevic, the ex-president of Yugoslavia who stands accused on 66 separate counts of war crimes, crimes against humanity and genocide, has again fallen ill. Prosecutors, who had hoped to rest their case at the International Criminal Tribunal for the former Yugoslavia this afternoon, will have to wait until next week.
More than two years ago, the ground-breaking trial, which for the first time in history requires a former head of state to answer charges of war crimes and genocide, began in a blaze of publicity and lofty rhetoric.
Carla del Ponte, chief prosecutor at the UN-backed tribunal, opened proceedings by declaring: “Today, as never before, we see international justice in action.” The trial, she said, was “the most powerful demonstration that no one is above the law”.
As the world’s media set up camp on the forecourt of the converted insurance building that houses the ICTY, international legal experts and human rights groups declared that the proceedings set “a new benchmark” for international justice.
But, since then, the grinding reality of having to back up such a complex and weighty indictment – which covers a 10-year time span and involves detailed allegations stemming from events during the conflicts in Croatia in 1991-2, Bosnia-Herzegovina in 1992-5 and Kosovo in 1999 – has set in.
Originally, it was envisaged that the prosecution would take about a year to present its case. Within months, however, with a 350-strong list of potential witnesses ranging from Kosovan-Albanian farmers to General Wesley Clark, former head of Nato forces in Europe, and Lord David Owen, former European Union peace negotiator in the region, it was clear that the timetable was inadequate. A May 2003 deadline was set; but then Mr Milosevic’s ill-health, and his insistence on self-representation, compounded the problems. Repeatedly, the date was pushed back.
When the prosecution at last wraps up its evidence, the court will have heard from a staggering 296 witnesses, spread over more than 290 days.
The judges will also have received a huge body of documentary evidence – about 30,000 pages – ranging from security intercepts to private diaries, much of which remains beyond the public gaze.
But if the sheer slog of getting to this halfway stage has been gruelling, three big questions now surround the trial.
First, with all this mass of evidence, has the prosecution successfully proved its case?
Second, if fleshing out the charges has been a struggle, how will the court cope with the defence? Mr Milosevic refuses to recognise the tribunal’s authority and, as a litigant-in-person, he has adroitly turned cross-examination opportunities into platforms for tub-thumping political debate – which has played effectively to portions of his domestic audience.
Britain’s Richard May, the senior presiding judge, has attempted to rein in the former Yugoslav president. But the months ahead could bring much more of the same. “It’s complete nightmare. It could be the Slobodan Milosevic show, twenty-four-seven. And they have to let him talk,” says Stacy Sullivan at the Institute for War and Peace Reporting, in The Hague.
Third, and perhaps most important, what lessons can be drawn from the Milosevic trial for the prosecution of other errant world leaders?
This is not merely an academic question. Saddam Hussein is already in captivity and, while the former Iraqi dictator will probably be turned over to a domestic tribunal system, international jurists are still lobbying for an input.
There is also an outstanding indictment, involving war crimes charges, against Charles Taylor, the former Liberian president. A Belgian magistrate is actively investigating possible charges against Hissene Habre, the Chadian dictator, in a case dating from before the country abandoned its “universal jurisdiction” law.
None of these questions has an easy answer. Indeed, tribunal-watchers point out that any comprehensive assessment of the strength of the prosecution’s case is hampered by the fact that significant tranches of evidence were given in camera.
There are various reasons for this having been deemed necessary, notably security concerns over certain witnesses. The US State Department, for instance, insisted on vetting evidence given by Gen Clark, although this was later made public.
Nevertheless, since the judges may have heard critical evidence denied to the general public, some observers are already asking whether the gravest charge – genocide – has been proved. This count largely relates to the treatment of Bosnian Muslims in detention and to the horrific events at Srebrenica, which in 1995 was a “safe haven” in eastern Bosnia supposedly protected by Dutch UN peacekeepers. There, it is alleged, thousands of Muslims died at the hands of Bosnian Serbs.
On several occasions, the court heard evidence that Mr Milosevic knew of the potential for genocide. Philippe Morillon, a French general, told of warning Mr Milosevic two years before the massacre that a “terrible tragedy” would happen at Srebrenica.
But the court has also heard varying testimony about the influence that Mr Milosevic, then Serbian president, wielded over Ratko Mladic, commander of the Bosnian Serb forces. Gen Clark recounted an August 1995 conversation in which he claimed that, when asked how Gen Mladic was allowed to kill so many people at Srebrenica, Mr Milosevic replied that he warned Gen Mladic “not to do this, but he didn’t listen to me”. (Mr Milosevic countered by accusing the US general of “twisting the truth”, and contended that the conversation was about general military operations, not Srebrenica.)
Moreover, as Judith Armatta at the Coalition for International Justice says, a genocide charge requires a specific intention to destroy an ethnic or religious group, in whole or in part.
“Connecting Milosevic to [genocide] is much more difficult – I haven’t seen any compelling testimony,” she says. Ms Sullivan is even more blunt: “It doesn’t look as if the prosecution has come close to establishing genocide.”
Still, not everyone believes that the lack of a genocide conviction would be a disaster – particularly if the prosecution has built its case more convincingly in other areas (notably in respect of Kosovo, where events were more recent and the chain of command more self-evident). As Ms Sullivan points out, if evidence of genocide is genuinely thought insufficient, an acquittal on this score might enhance the perceived legitimacy of the tribunal in Mr Milosevic’s heartland.
And it would still leave prosecutors with a second count of “complicity in genocide”. This would require them to establish that Mr Milosevic knew those he conspired with, or supported, had genocidal intent. “If the prosecutors make complicity stick, that’s pretty serious,” says Ms Armatta.
In terms of how the court will cope with Mr Milosevic’s defence, observers expect a testing period ahead. After a three-month pause, Mr Milosevic is due to open his defence on May 19. Given the time and number of witnesses employed by the prosecution, fair trial considerations will demand that he, too, is given generous parameters.
The defendant has until April to produce his witness list but already he has said that he wants to question international policymakers from the 1990s – including Bill Clinton, former US president, France’s Jacques Chirac and Britain’s Tony Blair.
Legal observers say the court’s best hope of keeping a grip on proceedings will be to require Mr Milosevic to detail the relevance of each witness to the specific criminal charges that he faces – and then to ensure that questioning keeps within these confines. “I don’t envy Judge May, who has to police this,” says Ms Armatta. o what broader lessons in light of the capture of Saddam Hussein and pending indictments against other leaders can be learnt from this historic – yet problematic – trial? The first centres on courtroom practicalities. Most observers agree that Mr Milosevic’s choice of self-representation has turned out to be shrewd, allowing him to use the tribunal as a political platform.
But some lawyers now question whether any international criminal tribunal or court should allow this right to go unfettered. After all, the underlying responsibility is to provide a defendant with access to a fair trial, and there may be a point at which self-representation is sufficiently vexatious for the court to intervene.
Already, some observers note, the ICTY itself has taken a much firmer stance with the forthcoming trial of Vojislav Seselj, the ultra-nationalist who, like Mr Milosevic, was elected to the Serbian parliament late last year and who has shown even more contempt for The Hague proceedings. (His defiance has ranged from demanding that his three judges be disqualified to insisting that their black and red robes cause him psychological problems and should therefore be changed.)
In Mr Seselj’s case, the court has imposed a standby counsel, ruling that if the defendant’s conduct becomes too disruptive, the appointed lawyer will take over.
The extensive supply of hearsay evidence is another practical difficulty. Many lawyers say that relaxed rules are probably justified where crimes of this nature are involved, where victims, perhaps still traumatised, are attempting to describe the broader circumstances that they confronted.
Second, the difficulties for prosecutors of operating in an environment where foreign and domestic policy considerations are omnipresent, and support may be fickle, has been amply underlined by the Milosevic trial. Only last week, Ms del Ponte lashed out at Belgrade, accusing it of providing a “safe haven” for Radovan Karadzic, the Bosnian Serb leader, and Mr Mladic, the two war crimes fugitives against whom a genocide case might be most likely to succeed.The International Criminal Court, the permanent tribunal established by the UN, has the added difficulty of being cold-shouldered by the US administration.
Last, there is the question of the wisdom of bringing an indictment as broad and ambitious as that against Mr Milosevic, with its decade-long time-span and copious individual counts.
Ms del Ponte fought for the right to have the former Yugoslav president tried for all his alleged misdeeds in a single trial. Original plans had envisaged that the Kosovo case would go first, followed by Croatia and Bosnia. That plan, though, was abandoned, on the grounds that the three conflicts were inextricably linked and it would be unfair to give one set of victims precedence.
But most observers say there has been an inevitable trade-off between the desire to present a comprehensive case and the public’s understanding of what is going on. “In a case like this, you can’t line up all your witnesses chronologically – the public is really at a disadvantage,” says one lawyer.
Opinions are divided on whether a “more manageable case”, which might have secured quicker convictions on certain counts, would have been preferable. “History requires that you spell out the range of his alleged crimes. The idea is to prove a case for his compatriots, posterity and his victims,” says Reed Brody, at Human Rights Watch’s New York office, recounting the grateful reaction of one family when a colleague showed them their relative’s name in one of the indictment’s lists of alleged victims. In other words, the more comprehensive the case, the narrower the scope for rewriting history.
Even so, most agree that this route has had a considerable cost. Like many things, international justice comes at a price.
Midway through the trial of Slobodan Milosevic, US policy towards war crimes justice and the Balkans is at a critical juncture.
When Mr Milosevic was indicted in 1999, Nato was bombing Serbia out of Kosovo and he had to be made an international pariah. Four years earlier, though, he had dominated the stage in Dayton, Ohio, negotiating the accord that ended the Bosnian conflict even though at that time the US had evidence to bring about the indictment of the former Yugoslav leader for the slaughter of Bosnian Muslims in Srebrenica – the worst massacre in Europe since the second world war.
Some call it ambivalent, others pragmatic, but few would dispute that the US attitude towards bringing war criminals to justice has been selective. The decision by George W. Bush’s administration not to recognise the commitment of its predecessor to the International Criminal Court has reinforced such a view.
Daniel Serwer, a Balkans expert at the US Institute of Peace, a think-tank funded by Congress, says the US has supported the trial of Mr Milosevic at the International Criminal Tribunal for the former Yugoslavia, which is taking place in The Hague. The pursuit in Bosnia of Radovan Karadzic, the former Bosnian Serb political leader, illustrates the US’s desire to close this chapter. But Mr Serwer also says there is “ambivalence” in the Bush administration towards the process in The Hague. He believes that the Bush administration sees its continued existence as a kind of pressure to accede to the ICC. “They want out of The Hague,” says Mr Serwer.
The US position is that any new prosecutions by the tribunal in The Hague should start by 2008, for the court to complete its work in 2010.
Frustrated by the slow pace of progress within the special ad hoc court created for the former Yugoslavia – and another created to consider war crimes committed in Rwanda – the US has turned towards favouring local justice bolstered by a degree of international supervision. Saddam Hussein is most likely to be tried by his fellow Iraqis.
Richard Holbrooke, the former US envoy to the Balkans and architect of the Dayton Accords, is dismayed that the Bush administration has decided to pull out its remaining 1,200 soldiers in Bosnia this year while indicted suspects remain at large.
In an address last week to the American Academy of Diplomacy, a non-partisan private group to promote US diplomacy, Mr Holbrooke said the US was sending the wrong message about its commitment and should stay until Mr Karadzic and Ratko Mladic, the wartime military leader of the Bosnian Serbs, were captured.
At the same event Richard Perle, a prominent adviser to the Pentagon, blamed France for giving what he called the “the run of the French sector” – the area of Bosnia under French military command – to indicted suspects. Mr Holbrooke agreed that Mr Karadzic spent most of his time in the French sector.
US policy towards Serbia, meanwhile, is also at a crossroads following the success of the ultra-nationalist Radicals in December’s parliamentary elections. Led by Vojislav Seselj, also indicted for war crimes in the Hague and imprisoned while facing trial, the Radicals emerged as the biggest single party.
Analysts in Washington say the Bush administration appears intent on continuing its old policy to keep the nationalists out of government at any cost. But the US is fast losing friends in Belgrade and some of its most powerful allies in Serbian politics are weakened by corruption scandals.