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Comment: Milosevic Trial Judges Face Quandary

Discussions on how to step up the pace of the trial raise questions about ensuring fairness for the defendant.
By Chris Stephen

With the imposition of a three-day week limit to the trial of Slobodan Milosevic, the genocide case is beginning to stretch out into infinity, leaving the judges once again wondering how to speed things up.

The restriction was imposed to give Milosevic more rest days in view of his failing health. There are solutions available to get around this, but all have problems.

First is the idea that witnesses could give evidence by video, rather than flying to The Hague only to find that Milosevic is sick that day.

The idea is fine in principle, but there are two possible objections: the witnesses will still need to appear in person for cross-examination; and Milosevic may simply refuse to watch the videos. Also, if he is watching a video and making notes, he is not having a rest day, so no time is saved.

More controversial is the idea of imposing a defence counsel on him. This idea treads the thin line between whether a defendant is cooperating with the court or not.

Around the world, courts can take action if a defendant refuses to cooperate, such as staying in their cell. Judges can order them to court, force them to take a lawyer or try them in absentia.

Equally, defendants have the right to defend themselves, and can hardly be blamed if they fall sick.

But what if they fall sick again and again? And what if they still refuse to appoint a lawyer who could carry on their defence without them? Does that count as obstruction? Or is it simply something that has to be accepted as a fact of life?

Finally, the judges could leave things as they are, deciding that although the trial is long, fairness is more important than speed.

The answer is of course that nobody knows. Not for the first time, this trial-of-trials has gone into unchartered territory.

And perhaps the judges deserve some sympathy as they make their decision – it will be picked over again and again by future generations of historians. But unlike historians, the judges do not have the benefit of hindsight.

Chris Stephen is IWPR’s project manager in The Hague.