ANALYSIS: Milosevic Mishandling Defence

Saturday, 2 March, 2002

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Mirko Klarin

With a defence like this, is there a need for a prosecutor?

The question arose in a discussion by judges, prosecutors and amici curiae on Milosevic's unusual defence style and tactics during the presentation of evidence supporting deportation charges on the defendant's Kosovo indictment.

On finding the accused was just not handling the defence role on his own properly, the judges and amici curae are becoming more actively involved in Milosevic's cross-examination of prosecution witnesses.

The judges have been more inclined to curb Milosevic's political comments than in the first two weeks of the trial; and turned some of the defendants remarks into clear, relevant questions, which they themselves put to the witnesses, and, at other times, told witnesses to ignore them.

The three attorneys appointed to act as amici curiae also took part in the cross-examination of prosecution witnesses, aiming to spot inconsistencies between their courtroom testimony and earlier statements to The Hague investigators (which Milosevic allegedly refuses to read).

They tried to differentiate between what the witnesses themselves saw or experienced and what they had heard from others.

The failure of "Milosevic the attorney" to mount an adequate defence was obvious in his cross-examination of Agron Berisha, a doctor from Suva Reka in Kosovo.

Milosevic examined him for over two hours, mostly on the NATO bombardment and KLA "terrorism", rather than on Berisha's testimony, which concerned the Serbian police's two-day orgy of violence inflicted on - among others - the witness's neighbours and relatives, which he watched from his nearby home.

He claimed about 30 police entered his cousins' homes and set them on fire, killing six victims on the spot, and taking the rest to a nearby pizza restaurant where they were killed by machine gun fire and grenades.

The indictment states that 40 to 50 Berisha family members died in the massacre, including many women and children.

The few survivors are to testify on this event when the evidence pertaining to the section of the indictment on mass killings is presented. As Berisha's cross-examination proceeded, and it became clear the accused was not asking anything about the events the witness said he saw, prosecutor Geoffrey Nice intervened to draw the judges's attention to the way the accused kept "dealing with peripheral and irrelevant questions, and not with the central issue of Berisha's testimony".

He suggested the court instruct Milosevic otherwise. Judge Richard May agreed Milosevic had used much of his time for "detailed elaboration of the issues which were not of main concern".

But he nevertheless issued no new instructions, saying "it is the job of the accused to decide on the manner of examination of the witnesses". In the remaining 10 minutes of cross-examination, Milosevic unsuccessfully tried to dispute the fact that the witness really saw what he claimed he saw.

A broader discussion of Milosevic's defence occurred the next day (February 26), when the prosecution indirectly criticised the judges' tolerance of the defendant's aggressive style of questioning prosecution witnesses, presenting comments instead of questions and trying to intimidate them.

Nice raised worries that Milosevic's manner of questioning might affect future witnesses, saying the prosecution "consciously took the stand not to intervene during the cross-examination", leaving it to the judges to "protect the witnesses".

The judges admitted they deliberately imposed fewer limits on Milosevic than they would have done on professional attorneys in the cross-examination. Without excluding the possibility of providing additional guidelines in the future, they asked the amici curiae to provide written submissions on two issues.

The first concerned the extent to which the accused would be allowed to ask questions concerning NATO and the KLA during the cross-examination, since in the latter phases of the trial he will be in position to present evidence on the way the bombardment and the military-terrorist activities of the other side affected events described in the indictment.

The second issue has wider significance, namely, to what extent a defence based on accusing the other side (in this case the KLA and NATO) of crimes should be allowed in an international criminal proceeding.

May said that while some courts had designated such a defence as "irrelevant", the chamber had not excluded these questions so far. He failed to note, however, that the tribunal has never thus far admitted the validity of a defence based on justifying one side's crimes by pointing to those of the other side.

"Milosevic the attorney", meanwhile, continues his usual practice. He has ignored at least a hundred warnings over the past 10 days that cross-examination is not the time to present his own evidence but to dispute the prosecutor's, and that he will have a chance to present his own evidence after the prosecution case.

But the defendant seems oblivious of the need to prove anything, as the things he talks about, such as "NATO aggression" and "KLA terrorism," are, he says, "generally accepted facts".

One such "notorious fact" is that Yugoslav Army, VJ, and Serbian police "committed no crimes in Kosovo", but only "protected their people" and "helped Albanian refugees escape the NATO bombs and leave the war zones in which the VJ and KLA clashed".

For all his legal education, it was clear that Milosevic was unaware of the difference between cross-examining prosecution witnesses and presenting his defence case and evidence.

During long and intense cross-examination of Halit Barani, a theatre director from Kosovska Mitrovica and president of the local human rights council, the defendant said a "hit list" that the witness gave the prosecution was a fake.

The document, entitled "List of Shiptars (derogatory term for Kosovo Albanians) in Kosovska Mitrovica to be summarily liquidated", signed on February 19, 1999 by a certain Colonel Markovic (a Serbian name), was found in the town hall by one of the witnesses' friends, a local Albanian politician, after international peacekeepers entered Kosovo in July 1999.

The alleged hit list contains 66 names of local Albanian community leaders, including the witness' name. The latter said three people on the list were killed in spring of 1999.

In an effective riposte, Milosevic said the list's spelling and grammatical errors showed it was a "a clear example of forgery", as such errors "are made by foreigners, especially Albanians, but not Serbs".

When Judge Patrick Robinson said this was "very interesting" and hoped Milosevic would produce witnesses to confirm the thesis when he presented his evidence, Milosevic replied, "This is evidence!", waving the paper and repeating that these were spelling errors "no Serb could have made".

When Robinson again explained that Milosevic's current task was to cross-examine the witnesses and not to testify, and that he could present his evidence in due course, the defendant looked at him in bewilderment, believing that was what he had just done.

Such bewilderment may explain his failure to nail the witness with a key argument. He did not ask Barani if he really believed the Serbian police was so inefficient that over four months from February 19 until the end of June 1999, (when international forces entered Kosovo) they failed to liquidate more than three of the 66 names on the list.

Possibly "Milosevic the attorney" felt such an argument, no matter how persuasive, would not be appropriate for Milosevic the accused.

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.