Was Milosevic Charge Sheet Too Ambitious?

When prosecutors initiated their case against Slobodan Milosevic nearly two and half years ago, they decided to think big.

They joined what were originally three separate indictments into one massive legal action. In doing this, they created a case - involving 66 counts of crimes against humanity, war crimes, and genocide, covering conflicts in three different countries - the size and complexity of which had not been seen since the end of WWII.

But with the trial delayed again because of Milosevic’s continuing ill-health, some are asking if the prosecution should have limited the trial from the outset. Perhaps, these people say, a more narrow case with fewer charges or a smaller geographic scope could have already secured a verdict.

Others insist, however, that limiting the case - by proceeding, at least initially, on only one of the original three indictments, for example - would have undermined the interests of justice.

These divided opinions go to the heart of the question of whether a trial of a former head of state accused of appalling atrocities can, or should, address the grievances of as many victims as possible - and whether this can be done in an efficient and effective manner.

Is it actually possible, or desirable, to reconcile these goals in one historic indictment - or is the trial now foundering under the weight of such expectations?

It was back in May 1999 that the tribunal confirmed the prosecutor’s indictment against Milosevic for crimes committed in Kosovo. More than two years later, in October 2001, came confirmation of the one for Croatia; and the following month that for Bosnia.

This time lag was caused by the fact that the prosecution had ample evidence to bring the Kosovo case long before it did for crimes related to Croatia or Bosnia.

But just before the Kosovo case was set to go to trial, the prosecutor asked the tribunal to join the three indictments together into one case. The reason, prosecutor Geoffrey Nice explained at the time, was that the allegations from each concerned “the same transaction, in the sense of common scheme, strategy or plan”, namely Milosevic’s alleged attempts to create Greater Serbia - "a centralised Serbian state encompassing the Serb-populated areas of Croatia and Bosnia and Herzegovina, and all of Kosovo”.

The tribunal’s rules allow cases to be combined when the same transaction is involved.

“Without the complete picture, it will…be very difficult for a chamber to judge this man, his doings and his thoughts,” said Nice, who continued to argue that a single trial would create "substantial judicial economies", including a shorter time frame and a smaller witness list.

Specifically, he said, more than 20 witnesses were relevant to more than one indictment, and he warned that some of these people would likely be unwilling or unable to testify more than once.

He also insisted that “there is the interest of justice in having the accused dealt with ... by a single chamber on a single occasion”.

But the court did not agree, ruling that while the Bosnia and Croatia indictments involved “a close proximity in time, type of conflict, and responsibility of the accused” and thus could be joined together, Kosovo was different.

“There is a distinction in time and place between the Kosovo and the other indictments and also a distinction in the way the accused is alleged to have acted,” they explained. As a result, the judges decided that the Kosovo case would be tried separately and held first, with a joined Croatia/Bosnia trial to follow.

The prosecution appealed. And this time, the appeals chamber found that acts alleged in the three indictments did, in fact, “form the same transaction” and thus ordered “that there should be only one trial” combining the separate cases.

Less than two weeks after this decision was handed down, the most important war crimes case since the Nuremburg trials began. That was almost two and a half years ago. And as things stand now, its end is nowhere in sight.

Milosevic is ill and, according to his doctors, getting more so. It is unclear when he will be well enough to begin his defense after the trial reconvenes following the summer recess, and how many days a week he will be able to work.

The trial chamber in charge of his case has already lost one judge. Sir Richard May, who presided over the prosecution phase of the trial, died earlier this month, after stepping down from his post this spring. His place has been taken by a new judge, but the chamber is now utterly dependent on the good health of its members as current tribunal rules allow for the makeup of the court to be changed only once without the consent of the accused.

All of this has raised concern that the trial could somehow collapse or end without a final verdict. And it has led people to ask whether the case should have been limited from the beginning.

Broadly speaking, there are two ways this could have been done. Prosecutors might have gone forward with a single indictment - on Kosovo, for example - as the trial chamber initially wished. Or, once the three cases were joined, the prosecutor might have restricted the number of counts with which Milosevic was charged.

Both approaches offer distinct risks and benefits.

Marieke Wierda, senior associate at the International Center for Transitional Justice and a former law clerk to Judge May, told IWPR that having one massive case is a “high stakes” approach, because “if the accused is deemed unfit or dies during the case, then you are left with nothing”.

On the other hand, she said, if the prosecutors had gone forward with the Kosovo indictment first, they “could have had a conviction on Kosovo under their belts by now”.

She noted that after the Kosovo case was concluded, the argument for having another trial for Croatia and Bosnia would have been strong. But, she said, one would have had to ask whether “there still existed an appetite among the international community, especially funders, to continue with the other two cases”. And if not, she queried, “Would there be large gaps in the historical record and would this be unsatisfactory to victims?”

The answer would likely have been yes. A Sarajevo-based analyst, who spoke on condition of anonymity, told IWPR, “If he [Milosevic] had been tried only for Kosovo, there wouldn’t have been any guarantees that he could be tried for Bosnia and Croatia later.

“To me, it is much more important that Milosevic's politics and actions during the war [are brought into the open] than to seen him in jail. And that wouldn’t be possible without him being tried for war crimes in Bosnia too.”

Munira Subasic, president of the Srebrenica Women’s Association, agreed, insisting, “I would have felt humiliated and betrayed if Milosevic hadn’t been on trial for war crimes committed in Bosnia.

“I don’t care how long the trial will last. As far as I am concerned it can take ten years if necessary - as long as his guilt is proven. It wouldn’t mean anything to me if he ended up in jail just because of Kosovo. It’s very important that he stands trial for Bosnia also,” she added.

Two and a half years down the road, despite all the problems the trial has faced, Florence Hartmann, spokesperson for the tribunal’s chief prosecutor Carla Del Ponte, remains adamant that the prosecutor’s strategy was the right one.

She says the indictment was brought using a sample of the types of crime committed "in order to depict the picture of the criminal system that Milosevic put in place, how it was implemented, and what was its goal

“With a too selective case, the victims wouldn't be satisfied that justice has been done. We are dealing with very serious violations - widespread, systematic, going on for years. You have to show the pattern, the scheme.”

But some believe the sample used might still have been too broad.

Richard Dicker, director of the International Justice Program at Human Rights Watch, suggested that once the indictments for the three locations were joined into one trial, it might have been wise to narrow the number of counts - paring down the 66 that the prosecution alleged to something more manageable.

He acknowledged that limiting Milosevic’s indictments in this way would have had the unfortunate consequence of “making some victims feel the process did not address their searing experiences” but suggested that this might sometimes be “inevitable" in such proceedings.

In the end, he said, people's hopes for what such a trial can accomplish may just have been too high.

“Going forward, it is important that we have realistic expectations about the trial process and what is going to come out,” he explained. “Prosecutors should focus on a limited set of charges, or counts, for which the proof is strongest even though important incidents may not be included.

“The trials shouldn’t attempt to be a history book.”

Rachel S. Taylor is an IWPR editor in The Hague. IWPR reporter Merdijana Sadovic contributed reporting for this article.