Another Blow for the Prosecution? Court refuses to hear summary of crimes

While there is little on which the Trial Chamber, the accused and the prosecutor agree in the trial of Slobodan Milosevic, there is apparent agreement that what happened at Racak on January 15, 1999, is a pivotal event. Forty-five bodies were found in and near Racak by OSCE verifiers following an attack on the village by Serbian police and the Yugoslav Army. The prosecutor calls it a massacre of unarmed civilians. Milosevic claims they were KLA soldiers killed in battle, dressed like civilians and moved there to create an incident to precipitate NATO intervention. Whatever the case, the killings at Racak re-engaged the international community, led to the failed Rambouillet negotiations and, ultimately, to NATO bombing.

According to the prosecutor, Racak could be a case on its own, requiring testimony from at least 30 of the 60 identified witnesses. In the context of the present case covering three wars and ten years, it can only be treated as one incident -- and, in light of the time constraints imposed by the Trial Chamber, must be proved through the mostly written testimony of five witnesses. To assure that the Trial Chamber hears a comprehensive account of what happened, the prosecutor proposed that Barney Kelly, an OTP investigator, be allowed to give 'summarizing evidence,' i.e. an overall summary of all the witnesses' statements. The Chamber turned him down.

As Judge Robinson stated, the heart of the issue is the scope of the prosecution's case. The Trial Chamber's rulings on a variety of issues demonstrate that its view of what the scope should be differs significantly from that of the OTP. Judge May articulated it thus: 'You are setting out to prove the case in detail. This is a command responsibility case. Clearly there is a limit to the evidence the prosecution can bring or the court can receive.' Weighing in with Judge May, Judge Robinson added, 'Not every case of admittedly serious violations of international humanitarian law can be prosecuted.'

Lead prosecutor Geoffrey Nice disagreed, 'These are very grave allegations involving massive crimes [over many years and a large geographic area]. They cannot be cut down so as to be unrecognizable. There can be a sample of events if it is truly a sample. . . . [You] cannot go from one to two incidents and assume it has been happening on a widespread basis. You must have a reasonably sufficient sample. If not, we cannot argue the case that was indicted and confirmed.'

Proving command responsibility is only one element the prosecutor must establish beyond a reasonable doubt. In the Kosovo part of the case alone, the OTP must also show there was a massive and systematic deportation of civilians from throughout Kosovo and that intentional killings, sexual assaults and abuses of civilians, and destruction of cultural and religious monuments were part of the strategy of ethnic cleansing, or, in the alternative, that they occurred on a large scale, the defendant knew about them and did nothing effectively to stop them. From the prosecution's viewpoint, proof of this requires more than a few witnesses per site.

Despite framing the issue as one that goes to the scope of the prosecution's case, the Chamber explicitly stated its ruling was limited only to whether to accept Investigator Kelly's report or not. The Court rejected the testimony because the investigator was part of the OTP staff and he would do no more than make the kind of summarizing statement the prosecutor will do at the end of the case. The Court cited its prior ruling disallowing the summarizing testimony of another OTP investigator, Kevin Curtis, at the beginning of the case in February. There it held such testimony is hearsay and without probative value. The Court went on to hold that for the investigator to give his or her conclusions as to the meaning of the summarized evidence is to trespass on the functions of the Trial Chamber.

Mr. Nice was quick to ask the Trial Chamber to make the appropriate certification to permit an interlocutory appeal of the issue. As a general rule, errors during the trial stage may not be appealed until the trial is concluded and a final judgment issued. However, ICTY rules permit immediate appeals (interlocutory) during the trial where the Trial Chamber certifies that 'a decision involving evidence or procedure is appropriate for the continuation of the trial.' The prosecution was prevented from appealing another decision of the Trial Chamber by not securing this certification (see Report #31, Prosecution Time Limit Stands). He is taking no chances of being denied an interlocutory appeal on a technicality again.

While the Trial Chamber sought to limit its ruling, the prosecutor nevertheless sees it as having a major effect on his ability to prove the indictment. Since the court has strictly limited the time available for the prosecution to prove all three indictments, as well as given Milosevic time to orally question every witness whose evidence the prosecution submits in written form, the use of a summarizing witness is one of the few ways remaining to the prosecution to present a comprehensive view of events. Unless the Trial Chamber relaxes its stranglehold on the prosecution, and shows more deference to the prosecution?s view of its case, there is danger that the evidence will be insufficient to prove the indictment, or at least major portions of it. While time is an important consideration, it shouldn?t outweigh the interests of the victims and the public in having as full a hearing as possible of the evidence of mass atrocities and ethnic cleansing in the context of the trial of the man arguably most responsible for them.