Frustrated Prosecutor Seeks to Involve Court in Solution

In a discussion of the status of its case against Slobodan Milosevic, lead Prosecutor Geoffrey Nice told the Court that he [Nice] is probably the only person who has the duty of prosecuting a former head of state charged with war crimes, crimes against humanity and genocide for conduct in three wars. Indeed, the case is monumental in scope and complexity -- far more so because the accused insists on representing himself.

With 66 counts to be proved in the case, Presiding Judge Richard May has imposed a tight timeline on the prosecution. Its entire case was to be completed by May 26 -- until approximately 30 court days were lost due to Milosevic's health. Even with 30 days added, however, Mr. Nice advised the Court it was all but impossible to meet the deadline.

The case against Milosevic is really three cases which have been joined into one: Kosovo, Croatia and Bosnia-Herzegovina. While the prosecution met the Court's deadline for the Kosovo case, a number of witnesses remain to be heard, which may require an additional 13 to 20 days. According to Mr. Nice's calculations, ten more court days remain in the Croatia phase of the case, while the prosecution has evidence that will take 22 court days. If the Court allows Milosevic to cross-examine witnesses testifying to crimes, rather than limiting their evidence to written statements (Rule 92bis witnesses), an additional 16 to 17 days may be required. It is estimated that the remaining Kosovo and Croatia cases will take about three-quarters of the time left to the prosecution -- and that doesn't include the biggest part of the case: Bosnia-Herzegovina.

To assist the Court, Mr. Nice distinguished between what he called 'priority 1' and 'priority 2' witnesses. Priority 1 witnesses are essential to prove a bare bones case. Priority 2 witnesses provide a more complete view of what happened which might include a number of international figures. In the Bosnia case, priority 1 witnesses alone are estimated to take 80 days. An additional 41 days will be necessary to prove the charges for crimes committed at Srebrenica and Sarajevo. Including priority 2 witnesses adds 33 more days. If Milosevic gets to cross examine 92bis witnesses, as he has so far, another 31 to 32 days will be required. Add to that any witnesses the Court itself wants to call and the prosecution's Bosnia case adds up to about 188 court days. In the first year of the trial, the Court held fewer than 150 sessions. Without some additional reduction in the prosecution's case, it alone will last well over 18 more months -- and then the accused will likely have equal time to present his case. That would mean a 5 year trial! It is extremely unlikely Judge May would find that compatible with his duty to expedite the proceedings.

Mr. Nice advised the Court that the most appropriate and expeditious way to deal with a case of this magnitude tried before professional judges is the method used in the civil law tradition -- and increasingly being used in complex trials in common law jurisdictions like the United Kingdom and the United States. There, evidence in chief is submitted in writing, followed by limited cross examination. The Court then questions both sides as it finds necessary. Recognizing the Court is unlikely to adopt such a procedure here, Mr. Nice offered other suggestions, after pointing out that the prosecution has 'proposed a range of methods for saving time. It seems none have as yet found favor with the Court, though all have involved concessions by the Office of the Prosecutor of things which would have been to their advantage.'

One suggestion the Prosecution has made in writing some time ago is for the Trial Chamber to apply Rule 92bis as written, without allowing Milosevic to cross examine the witnesses. The purpose of the Rule was to assist in expediting the proceedings by allowing witnesses to provide their evidence in writing 'in lieu of oral testimony' when it goes to prove 'matters other than the acts and conduct of the accused as charged in the indictment.' Rule 92bis witnesses in the Milosevic case have largely provided evidence on crimes for which Milosevic bears superior authority or which were a foreseeable consequence of the joint criminal enterprise in which he participated that planned and directed ethnic cleansing. He is not accused of directly committing those crimes.

While the Court has the authority to receive such evidence solely in written form, it has allowed Milosevic to cross examine each 92bis witness -- usually for an hour. This has added substantially to the time required for the prosecution to present its case. If the Court disallows cross examination on 92bis witnesses from this point in the trial, almost 50 days will be saved.

The Prosecutor has also asked the Court to admit substantial portions of the transcript from other cases which have already been heard and decided at the Tribunal. This procedure is allowed under Rule 92bis D: 'A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.' In a written response to the prosecution's request to use transcripts from other trials, the Amici Curiae pointed out that this procedure interferes with the accused's right to cross examine witnesses. Though these witnesses were cross examined in prior trials, the accused in those trials may not have had the same interest or strategy in doing so. As the Amici wrote, 'The extensiveness of the questioning in each case depends upon the issues that each individual party for its purposes regards as important or puts in issue, according to its client's instructions.' The Amici maintained that Milosevic's interests and the case against him are wholly different than the interests of the accused in the earlier cases.

The Court has not ruled on either of these written applications. Given the Prosecution's obvious frustration in trying to manage the case within the Court's time and procedural constraints, Mr. Nice invited the Chambers to 'look at the remaining case in terms of witnesses to be called, rather than time.' He suggested that the Court 'involve itself in deciding which witnesses it wants to hear' for the remaining portion of the trial. The Court could make its decision by reviewing the witness summaries which the Prosecution provides it. As Mr. Nice pointed out, this entails the surrender of a degree of his discretion (power over his case) to the Court. He was nevertheless willing to suggest it, as few other options remain open to him to meet his obligation of proving the case within the Court's time and procedural constraints.

The dilemma facing the Prosecution and the Court is serious and however it is resolved will have serious consequences. If only the barest minimum evidence is allowed -- enough to hold Milosevic legally responsible -- it may be insufficient for public comprehension of the events and Milosevic's role in them. It may also be insufficient for victims and survivors, whose stories will be seriously abbreviated. The prosecution has reduced its Bosnia case from proving crimes in 47 municipalities to focusing on three, plus Srebrenica and Sarajevo and another six which will be presented under Rule 92bis, i.e. through written statements. As a result, victims and the larger public will not see Milosevic confronted with crimes in 36 additional municipalities, as originally anticipated.

The Trial Chamber is aware of its duty to assure justice is done in a timely manner. It is equally aware of its responsibility to assure the accused, particularly this one who is self-represented, receives a fair trial. However proper, the procedures the Chamber has adopted and leeway it has given him have added considerably to the length of the case. In its presentation, the Prosecution called on the Court to assist it in carrying out its duty to present its full case against the accused. Mr. Nice was not asking the Court to help it prove its case, as Milosevic complained. He was asking the Court to assist in the process of justice-making, which is designed to serve the greater public interest in truth and accountability for horrendous crimes. That requires more than refusing all the prosecution's suggestions, while pressing it to 'convert a liter into a half liter jug,' as Mr. Nice characterized how he, as lead counsel, is forced to spend the majority of his time.

The Prosecution has not specifically asked for an extension of time yet, but was apprising the Court of the case status to date. Additional time may be saved, he said, as unexpected witnesses come forward who can provide testimony that would otherwise require several witnesses and lengthier examination. Further argument from the Amici Curiae and Milosevic can be expected before the Court rules on any of the Prosecution's applications for written in lieu of oral testimony or the admission of transcripts or makes a decision on selecting witnesses.