ANALYSIS: Milosevic's Lawless Court

Saturday, 1 September, 2001

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Mirko Klarin

On the intimate stage of the war crimes tribunal, Slobodan Milosevic sought to use his second appearance before judges to make political theatre. But after a ten-minute tirade, his microphone was cut off by the bench, and the biggest drama of the day was provided, in the end, by his nemesis, Carla Del Ponte.

While Milosevic, looking somewhat rested after nearly two months in The Hague, sought to rehearse standard political objections to the legitimacy of the court, the chief prosecutor took the unusual step of announcing that on October 1 she intends to sign a fresh indictment against the former Yugoslav president, alleging genocide in Bosnia and Herzegovina. At a stroke, Del Ponte provided more real drama than the well-trailed but ultimately tired performance of the world's most famous defendant.

The status conference, August 30, sought to establish the progress made by both sides in preparing for trial and to offer the accused a chance to raise concerns regarding his case as well as his physical or mental condition.

Progress has been all but negligible. Since his transfer to The Hague, 29 July 2001, Milosevic has refused to appoint defence council or to accept or read the indictment and supporting evidence disclosed to him by the prosecution.

Indeed, on August 9, Milosevic presented a "preliminary protective motion" disputing the legality and legitimacy of the tribunal. But two weeks later, understanding that filing the motion could be taken to imply that he accepted the procedures of what he refers to as the "illegal tribunal", he withdrew the motion in writing.

In a letter to the tribunal registry, August 24, Milosevic specified that that "paper" was in "no way a request or a motion for the illegitimate tribunal to decide something in its illegal procedure". Instead he said it was only a "warning" about the obligation of the tribunal to "to release me from prison immediately", written proof that the court has "consciously . . .. commit[ted] a crime".

In an effort to expedite the process, the prosecution used the status conference to ask the court to impose a defence lawyer on Milosevic. But the judges flatly refused, saying that this would violate both the tribunal's statute and the customary international law.

Instead the judges ordered the appointment of an amicus curiae ("friend of the court"), a lawyer who would not represent the defendant but would make representations on his behalf, including: potential preliminary or pre-trial motions, procedural or evidentiary submissions or cross-examination of witnesses, exculpatory or mitigating evidence; or any other steps open to the defendant in the interests of a fair trial.

The idea appears to be that the amicus should function as some sort of independent party in the court, able to challenge the prosecutor's case and evidence. The task will not be simple if Milosevic refuses to cooperate, which seems certain at least at the moment. An appointment is expected within a week, and strongest candidate so far is Dutch criminal lawyer Michail Wladimiroff, who defended Dusko Tadic in the first trial at the tribunal in 1996. According to Dutch legal sources, he is likely to be assisted by two more lawyers, so that Milosevic would have a troika of amicus curiae.

Progress has also been slowed by the prosecutor. For the moment, the case against Milosevic is based solely on the indictment for crimes against humanity and violations of the laws and customs of war in Kosovo.

This will not be the final version of that indictment since, as Del Ponte explained to the judges, the prosecution intends to amend it to take into account investigations into mass graves recently discovered around Belgrade and other locations in Serbia. The prosecutor indicated that an amended Kosovo indictment can be expected by the beginning of November.

In addition, Del Ponte disclosed that on October 1 she will sign indictments against Milosevic for crimes during armed conflicts in Croatia and Bosnia, of which at least one will include a crime of genocide. If judges confirm these indictments, the prosecution will seek the joining of the indictments, so that Milosevic would be simultaneously tried for all crimes alleged in Croatia, Bosnia and Kosovo. In the best scenario, that trial could start in the middle of 2002.

As for his own personal condition, Milosevic made no comment. But physically, he appeared in much better form than at his arraignment hearing, July 3. Two months of the quiet and healthy life offered by the UN detention unit - lots of sleep, regular walks and an absence of alcohol - have evidently done him good.

Mentally, too, Milosevic seemed more like his old self than during his first somewhat shell-shocked appearance following his abrupt transfer from Belgrade. This time, he showed that he already understood the drill, for example not needing to be reminded by the guards that, like everyone else in the court and gallery, he should stand when he judges make their entry or exit.

Pointedly looking away from the bench, towards the public gallery, during the first half hour of the conference, he feigned lack of interest in whatever the judges or prosecution had to say.

Milosevic only came to attention after the presiding judge, Richard May, asked him directly whether he had any concerns to raise. The former president immediately fell into dispute, asking if the judges would turn off his microphone, as they had done on his first appearance.

He informed the court that he had prepared a "presentation on the illegality of the tribunal" and, withdrawing a somewhat crumpled document from his breast pocket, warned that his associates would distribute it to the press if he was not allowed to read it, or at least present it, to the court.

In the event, Milosevic's 36-page presentation has been entered as a motion disputing the jurisdiction of the court, and was immediately distributed by the tribunal press office to journalists after the session.

The document, a rambling critique of US power from Central America and Africa to Asia and of course the Balkans, was evidently produced by the International Committee for the Defence of Slobodan Milosevic, led by his "legal agent", the Canadian lawyer Christopher Black.

The central themes are that the US and other Western powers have been the primary instigators of war in the former Yugoslavia, and that the UN Security Council, as a US-dominated body, does not have the legal or moral authority to create a just tribunal. The document thus asserts that the tribunal is fatally flawed, with "disastrous consequences for the human quest for peace, the rule of law, democracy, truth and justice".

More interesting than the text itself, which is poorly presented and altogether lacks the professionalism of a formal court document, are the additions, deletions and editorial corrections made in Milosevic's own hand. References to the tribunal as "victor's justice", for example, have been crossed over, since Milosevic, despite his rather awkward position at the moment, still refuses to concede defeat in his confrontation with the world's superpower.

If it seemed at one point this summer that the anti-globalisation movement was looking to make Milosevic into its martyr, in this presentation, Milosevic appeared to be offering himself up as its leader, pencilling in in several places: "Globalisation - New Colonialism".

In his remarks, Milosevic repeated his well-known views about the "illegal" and "illegitimate" tribunal and its "false indictments", from which he has no need or intention to defend himself. Speaking only in English - with no sound-bites this time for the Serbian public back home - he complemented those views with accusations of "discrimination", "total isolation" and other violations of his human rights in the "illegal detention", where he is allegedly denied a right to have unhindered contact with his family, legal advisors and the press.

In reality, over the past two months, he has spent some 45 hours with his wife and other members of his family visiting him in detention. Despite his failure to appoint defence council, he has been allowed to speak several times with six Yugoslav and Western lawyers. He has also been allowed to hold a party meeting, with visiting representatives of the main board of his Socialist Party of Serbia.

As Milosevic appeared to warm to the political arguments, Judge May refused to enter into polemics over such details. Ultimately, even his British reserve appeared to have been tested, and he invoked the ultimate sanction, cutting off the microphone and bringing the conference to a close.

Some observers of the performance concluded the Milosevic is "trying to have it both ways". Richard Dicker of Human Right Watch says that by seeking a remedy from the court for alleged violations of his rights, Milosevic is "clearly acknowledging the authority of this court over him". On the other hand, Dicker notes, "in the very next sentence he is characterising the court as illegitimate with no authority over him".

Yet in Milosevic's case, there is no ambiguity at all, but rather the mental technique of holding contradictory beliefs at the same time which George Orwell defined as "doublethink".

Through this technique, Milosevic held onto power for 13 years, persuading his subjects that, over Croatia, Bosnia and Kosovo, "War is Peace"; over sanctions and Serbia's international isolation, "Freedom is Slavery"; and over the NATO intervention, "Defeat is Victory".

Having found himself under the jurisdiction of the tribunal and facing the most serious charges under international humanitarian law, Milosevic has revealed for his ever-decreasing constituency his latest truth, "Justice is Crime".

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