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ANALYSIS: Milosevic Courtroom Strategy
The trial some have already dubbed "the trial of the 21st century" gets underway on Tuesday, July 3, when Slobodan Milosevic makes his initial appearance in a Hague court to enter a plea to the charges levelled against him.
Trial chamber III, consisting of presiding judge Richard May from the United Kingdom, Judge Patrick Lipton Robinson from Jamaica and Judge Mohammed Fassi Fihri from Morocco, could face a lively morning if the previous conduct of the accused is anything to go by. Milosevic's lawyers, on the eve and during his transfer, said repeatedly that their client "does not recognise the tribunal" and that he plans to put forward a "political" defence.
Milosevic reiterated this line, or at least tried to, when he arrived at the United Nations detention unit at Scheveningen on June 29. An official present said he behaved in a rather "cheeky" way towards tribunal registry officers, launching into a speech on how he "doesn't recognise their jurisdiction".
But Milosevic soon changed tack, the official said, and agreed to go through the registration formalities faced by all new arrivals at the unit. Milosevic apparently grew a little irritated when asked to confirm basic, "common knowledge" information such as his place of birth and wife's name. But he eventually agreed to that, allowing the formalities to be completed without difficulties.
It's highly probable Milosevic will try to use his initial appearance in court to deliver a political speech or statement, reiterating his line that the tribunal is a political instrument or extended arm of NATO and that he now finds himself before it because he opposed the latter. The problem he faces with this tactic is Judge May, probably the judge most resistant to any attempts to turn the courtroom into a political pulpit.
Over a year ago, Momcilo Krajisnik, the former Bosnian Serb political leader, tried twice during his initial appearance to say something in his own defence. Judge May cut him short on both occasions. Krajisnik contented himself with pleading "not guilty" to the eight counts on his indictment.
It's difficult to predict how Milosevic would respond to such treatment or whether he will agree to enter a plea to the four counts he faces - three of crimes against humanity (deportation, murder and persecution on political, racial and religious grounds) and one of violating the laws or customs of war (murder).
The tribunal's rules of procedure stipulate that the accused can enter a plea immediately or within one month of his or her initial appearance. Should the accused refuse to do so, the trial chamber automatically enters a plea of not guilty on the defendant's behalf. Should Milosevic enter a plea on Tuesday, he would disappear from public view until the first status conference, which should be held within 120 days.
Disclosure of evidence then follows when prosecutors are obliged to make available to the defence, as soon as practicable, copies of the supporting material evidence used to secure confirmation of the indictment. The defence then has 60 days to submit preliminary motions.
It's probable the first preliminary motion Milosevic's defence team may bring before the court is a request to exclude Judge May. As a citizen of the United Kingdom, a NATO-member state, the defence may claim he is inappropriate, as the alliance is, according to them, an organisation bent on revenge against Milosevic.
When this possibility was put to tribunal president Judge Claude Jorda he said such a request could not be met because the tribunal is "made up of judges whose independence is guaranteed by the manner in which they were selected: a secret vote in the UN General Assembly". Jorda cited Egyptian judge, Fouad Riad, as an example where a judge's nationality or religion had no bearing on the cases heard. Riad sat on the bench during the trials of Bosnian Croat general Tihomir Blaskic and Bosnian Serb general Radislav Krstic, both accused of crimes against Muslims.
It is also possible Milosevic's defence could challenge the legality of his transfer to The Hague. They could well refer to the Yugoslav constitutional court ruling blocking the extradition - forced through by a Serbian government decree. Milosevic and his remaining backers in Belgrade claim the former president was "kidnapped". Yugoslav president Vojislav Kostunica described Milosevic's transfer as "unconstitutional".
The defence might even argue that Milosevic was extradited to The Hague in response to Western or NATO blackmail. Just hours after the former president arrived in The Hague, international donor countries attending a conference in Brussels pledged $1.28 billion to Yugoslavia, money the Milosevic team could well describe as "ransom money".
Previously judges at the tribunal have taken seriously allegations that defendants had been "kidnapped" or moved to The Hague "illegally". Stevan Todorovic and Dragan Nikolic both claimed to have been seized by "bounty hunters" inside Serbia, illegally moved to Bosnia, before being handed over to international forces in exchange for cash.
But the Milosevic case is somewhat different. He was not moved to the United States' military base in Tuzla by anonymous "bounty hunters", but by the legal authorities in Serbia. Whether the Yugoslav constitution was violated in the process is an internal Yugoslav matter and has no bearing on Milosevic's current status or the tribunal's jurisdiction over him.
If pushed to declare their opinions on this issue, the judges could conclude that the Yugoslav constitution, with the relevant provision prohibiting the extradition of citizens, is in breach of the country's international legal obligations.
Milosevic's "non-recognition" of the tribunal will also probably be developed by his lawyers into preliminary motions disputing the legality, legitimacy and jurisdiction of the tribunal.
The first challenges of this kind were presented by Dutch lawyer Michael Wladimiroff, defence counsel for Dusko Tadic, during the tribunal's first case in 1995. His very competent efforts obliged the appeals chamber to work extremely hard to provide a legal basis for the court's existence and the jurisdiction entrusted to it by the UN Security Council. The resulting judgement forms one of the basic tenets of the tribunal and, indeed, of international criminal justice.
Other defence teams have presented alternative arguments to challenge the legitimacy and jurisdiction of the tribunal - most recently those representing Krajisnik - but to no avail.
Milosevic's "non-recognition" is not new. His initial policy of ignoring the tribunal changed to actively disputing its legality immediately after the former chief prosecutor Louise Arbour announced an investigation into Kosovo in March 1998. From that date, Milosevic physically prevented Hague investigators, including Arbour, entering the province, claiming Serbia and Yugoslavia "do not recognise" the tribunal or the results of its investigations.
Arbour's response was to remind all concerned that when the tribunal was set up by the UN Security Council in May 1993, it did not ask for the "approval" or "permission" of Milosevic or any other leaders in the former Yugoslavia. She also pointed out that the tribunal judges, and not politicians, were charged with "recognising the results of investigations". As in a national court, Arbour said, the tribunal does not require the accused to "recognise" it, but to answer the accusations.
Many indictees have come to The Hague saying they "do not recognise the tribunal" but have soon adjusted to the reality of their situation and accepted the rules of the game in an effort to defend themselves against the charges as best they can.
If the "political defence" tactic is employed then we can expect to hear much from Milosevic himself during the trial. He could well enter the witness box, not to defend himself but to accuse his accusers, the western leaders and international bodies he blames for the disintegration of former Yugoslavia and the ensuing wars from Slovenia in 1991 to the war against in NATO in 1999.
It will be interesting to see if Milosevic handles the prosecutor's cross-examination with the same adroitness he showed during talks with Western politicians during the 1990s.
Another interesting side is whether he sticks to his "patriotic" plan to be defended by an all-Serbian team of lawyers. Several respectable Western lawyers, from Holland, the UK and the US, would relish the prospect of defending him in "trial of the 21st century".
Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of the SENSE News Agency.
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