Institute for War and Peace Reporting | Giving Voice, Driving Change

Comment: Milosevic's Disorderly Defence

Defendant sometimes give the appearance of being a competent lawyer, but for much of his trial he's been making elementary legal mistakes.
By Chris Stephen

One of the things you hear from people who have only seen the Milosevic trial on television is what a good defence lawyer he has proved to be.

Certainly, he has shown remarkable intelligence and stamina in being able to follow the huge case against him.

That he has had legal training is sometimes evident when he reminds witnesses about apparent contradictions in testimony given several days apart.

Yet in other ways his defence is very poor. This week saw a pattern that has become typical: a witness is produced by the prosecutor to give evidence on one part of the case. Milosevic then has his cross examination. This is supposed to be a chance to question the evidence being presented. But instead, the accused launches a probe into the wider conduct of the Bosnian war.

This week he asked an anonymous witness (see accompanying report) about events involving Serb and Bosnian government forces far away from his home. The witness, of course, knew nothing about it. Nor was he supposed to.

Such questions are common during Milosevic's cross-examinations. Witness after witness is asked what are essentially rhetorical questions - did they know that the Muslims started the war in Bijelinja? Did the witness know of mujahedin units in Sarajevo? Did the witness know of political events inside Croatia many months before the war? Or about World War Two atrocities?

Again and again this week Judge Richard May stepped in, at one point simply cutting power to Milosevic's microphone, to remind the defendant that he should be questioning the witness on matters he can answer.

On the face of it, Milosevic appears to misunderstand trial procedure. When the prosecution make their case, they produce witnesses to build up evidence. The evidence is assembled, slowly, week by week.

For Milosevic, the aim in his cross-examination should be to try to cast doubt on the evidence or the witness perhaps.

Instead, it seems he is engaged in self-justification: as if to say that the crimes committed by Serbs were nothing compared to those against them. This shows a misreading not just of war crimes law but all law. It is not a defence to say I did it to them because they did it to me. And even if you want to make that case, the time to do it is later, in the second part of the trial, when you make your defence.

Milosevic's cross examinations are often based not on questioning the witness statements, but on presenting a kind of moral equivalence: rather than deny a specific war crime allegation, the defendant would rather present evidence that all sides were committing atrocities.

By ignoring the chance to cross-examine, he allows evidence to be presented uncontested. Milosevic is doing this despite having plenty of legal advice. He has refused a legal representation in court, yet the court has three amicus curiae lawyers who make sure the defendant knows his rights.

In October last year, one of them, Michail Wladimiroff told a Dutch newspaper that if the trial "was only about Kosovo and one had to draw a balance now, Milosevic would certainly be convicted".

Making the statement was unwise, and Wladimiroff had to quit, but many thought he also spoke the truth - that Milosevic was failing to offer a good defence.

The accused also has a team of Belgrade lawyers who travel to The Hague, watch the case and advise him. The tribunal this week appointed a third such advisor. And Judge May has also often prompted Milosevic, reminding him of his rights to cross-examine.

All of this leaves open the question of Milosevic's objectives. Given that the defendant does not regard the court as legitimate, it may be that he can't see the point in cross-examination in a legal process he doesn't recognise.

Yet he appears to take the case very seriously: each day in court, the desk in front of him is covered with statements, note pads and folders. Milosevic is never less than immaculately turned out in white shirt and silk tie for court appearances. He listens carefully to the evidence.

And although he can be very rude to some witnesses, he is polite to Judge May as he holds the one thing Milosevic appears to fear - the power to turn off the microphone.

Perhaps, he feels cross examination is unnecessary, in view of the defence case he is planning to make. For this answer, we will all have to wait. The prosecution is expected to finish at the end of the year, or in January. There will then be a three month pause. And then, finally, we may get to see what Milosevic has in mind.

Chris Stephen is IWPR project manager in The Hague.