Concerns Over Milosevic Trial Length

On February 17, just over two years after the trial of Milosevic began, Hague prosecutors will run out of the time allotted by the tribunal to present their evidence and rest their case against the former Yugoslav president.

But that does not mean that this historic trial, in which nearly 300 witnesses have testified and hundreds of thousands of documents have been submitted, is near completion.

Milosevic is accused of 66 counts of war crimes, crimes against humanity and genocide and the three-judge trial chamber presiding over his case has stated that he will have the same amount of time to defend himself against the charges that the prosecution took trying to prove his guilt.

That won’t necessarily amount to the 286 days actually spent in court over the past two years, because much of this was not taken up by the prosecution but by Milosevic’s lengthy cross examinations. Indeed, prosecutors allege that Milosevic and the amici curiae (friends of the court the trial chamber appointed to aid the accused while he acts as his own defense) used more than two-thirds of this period, and the trial chamber has taken that into consideration in determining how much time Milosevic will be granted to present his defense.

Nonetheless, for a variety of reasons, the remainder of the Milosevic trial may well stretch on an additional two years.

Here is what will happen next.

According to the tribunal’s rules and procedures, after the prosecution concludes its case Milosevic or the amici may ask the court to acquit the accused on charges for which the prosecution has not presented sufficient evidence, which they have done in previous cases.

The judges can also do so at their own initiative.

The trial will then adjourn and Milosevic will be given at least three months to prepare his defense. Although the court has granted three months, the amici have appealed that decision and are asking for more time. The appeals chamber has yet to rule on their request.

About six weeks into the adjournment, the judges will hold a pre-defense conference and set the number of witnesses Milosevic will be allowed to call and the time he will be given to present his defense case – both of which the court may alter at its discretion.

After making his opening statement, Milosevic will then begin his defense. The trial chamber has declared that it will grant the prosecution the same amount of time it allowed Milosevic for cross-examination, but prosecutors are unlikely to use it all. This is expected to reduce the number of days necessary for the court to hear Milosevic’s defense, but because it has ruled that the defendant is only fit enough to spend three partial days per week in court (as opposed to five full days when the prosecution commenced its case) it’s unlikely to cut down on the duration of the trial.

In addition to ample time for cross-examination of any witnesses and evidence Milosevic presents, once he finishes his defense, the prosecution has the right to present rebuttal evidence on any new matters he might have raised.

Subsequent to that, Milosevic and the amici will get another opportunity to counter the prosecution’s rebuttal.

Finally, the court can summon witnesses itself or ask either party to present additional evidence. Given that the prosecution has yet to receive access to archives in the former Yugoslavia that it has requested to see, and given that the trial chamber has yet to rule on the admissibility of some documents it has requested be admitted into evidence, including some 245 intercepted telephone conversations, prosecutors are likely to try.

Only once that has been done do the prosecution and defense have the right to give closing arguments and to file a final trial brief, which reviews the charges and the evidence that they argue proves or fails to prove them.

The prosecution has the right to give an additional statement to rebut anything new the defense might raise in its final argument.

After hearing closing arguments, the judges will adjourn to deliberate. In the past, even for far less difficult cases, tribunal judges have taken in excess of six months to reach a verdict. Given the enormous complexity and scope of the Milosevic case, the trial chamber will likely take a significant amount of time to reach a judgment.

Once the judges do reach a verdict and pronounce a sentence, both the prosecution and defense are entitled to appeal – an option one or both sides will inevitably exercise.

During the appeals process – another lengthy procedure – both the prosecution and defense file briefs, reply to each other's briefs and present oral arguments to the appeals chamber, which consists of five judges.

Their deliberation will also be lengthy, because they must analyse legal arguments as well as review relevant parts of the trial record.

Even after the appeals chamber reaches a decision, if new evidence is found that might have affected the verdict, the parties can apply to the tribunal for consideration of it – a process that could result in the need for a new hearing or even a retrial.

By then, however, the tribunal will likely have been wound up – it is slated to close its doors in 2008 – so exactly what legal procedures will be put in place to deal with unfinished cases remains to be seen.

Judith Armatta is based in The Hague for the Coalition For International Justice (http://www.cij.org)