Court Challenged to Avoid Pitfalls: Complexity of trial and translation can be confusing

A trial of a state leader for 66 counts of war crimes, crimes against humanity and genocide committed over a ten year period during three wars is a massive undertaking. It involves hundreds of witnesses and thousands of pages of documents. Managing it so that a fair judgment can be rendered two to three years from its beginning is a daunting task for the three judges hearing the case. It is even more so with a self-represented accused who seems to believe confusing the witnesses is good cross examination or, at least, serves his interests. The testimony of Adnan Merovci provides an example of the pitfalls awaiting the court as it seeks to render justice in this case.

On May 23, 2002, Adnan Merovci, former aide to Kosova President Ibrahim Rugova, described how ten armed soldiers and police had stormed Dr. Rugova's house and beat him for about an hour. They ordered the families to be called and made them remain in one room for four hours without food, water or an opportunity to use the toilet.

For the next month, armed men surrounded the house, occasionally shooting through the windows and balconies. Two weeks into what amounted to a house arrest, authorities demanded that Dr. Rugova make a public declaration on television about his safety. Mr. Merovci agreed to do it in his stead. What turned out to be an interview taped for television was filmed in Dr. Rugova's home in the presence of armed police and soldiers.

At the end of his cross examination, Milosevic suddenly began reading from a transcript of the interview claiming Mr. Merovci had said, 'I categorically say bombing was the reason the people left [Kosovo].' Mr. Merovci vehemently denied that people fled due to NATO bombing, but admitted his statements might indirectly be interpreted to mean bombing played a role. He pointed out that when he gave the interview he was surrounded by armed police and soldiers. When Milosevic could not produce the tape, the Court asked the witness to return when Milosevic made it available.

Three months later, Mr. Merovci returned and the tape was shown. A central issue was whether the circumstances surrounding the interview amounted to duress, such that Mr. Merovci would not have been free to speak the truth. Generally, duress occurs where threats, violence, or detention are illegally used to compel a person to do something against his or her will. From Mr. Merovci's prior testimony, there seemed little question that he gave the interview under duress.

The tape showed a haggard looking Merovci whose appearance was consistent with having been beaten. On the tape, as interpreted from Albanian into English, Mr. Merovci is heard to say: 'The flight of the population is very complex. Bombing has caused people to move. But, as a counter argument, one could ask why Serbs from Northern Serbia [where there was also bombing] did not flee? It is complex. Time will tell. Analysts will look at it and say to what extent bombing influenced the population.'

Under Milosevic's cross examination after the tape was viewed, Mr. Merovci insisted, as he had in May, that the Albanian population did not flee Kosovo due to NATO bombing and that the interview was given under duress. 'In the television interview I was standing in front of guns.' Milosevic contemptuously responded, 'Oh, please, Mr. Merovci. These are such unbelievable things!' Milosevic hammered the witness repeatedly about the incredulity of his now claiming that he gave the interview under duress. While Mr. Merovci was never swayed from his testimony, the judges began to have doubts.

Judge Robinson asked, 'In the interview you declared you weren't forced and now you say you were.' The judge was referring to the following statement: 'I agreed to do the interview. No pressure was put on me. I am one of Dr. Rugova's staff and not subject to political obligations. . . . I can say now in public that I do feel under a certain kind of pressure and I don't need to say anymore.'

It seems obvious that Mr. Merovci was trying to walk a fine line, as he stated in explaining why he said bombing had a part in the movement of people. 'My reply that the movement of the population can be implicitly ascribed to the bombing was subtle in its own way. To get by the moment, I had to find a diplomatic answer. The word 'complexity' contains a lot of things. I avoided saying yes or no and gave a rather conditional and diplomatic reply.'

It seems even more obvious that the circumstances in which the interview was conducted were highly coercive. Yet the judges seemed, at least for a time, to miss both the subtleties of the interview and the context in which it was given. The passage of three months since Mr. Merovci's original testimony may have had an effect, though this is worrisome in a trial projected to last more than two years. As well, Milosevic's repetitive questioning and incredulous tone could have played a part, even with judges alert to his dramatics. In addition, Milosevic and the prosecutors were reading from two different transcripts of the interview. While slight, the variance between the two was significant. Milosevic read: 'You could make a counter argument that Serbs were fleeing from the North, but Albanians were not fleeing before bombing. I think bombing influenced the people to move.' In bringing the variance to the court's attention, the prosecutor read the same passge from its transcript: 'As a counter argument, you could ask why the Serbs from Northern Serbia didn't flee.' When the tape was shown in court, the interpreters translated the passage in conformity with the prosecution's version.

There is no telling whether the different translations were intentional or merely a mistake. Both are cause for concern in a trial where testimony must be translated into two languages and an accused refuses to give the court and its process any validity.

Throughout the proceedings, Milosevic has intentionally tried to confuse and intimidate witnesses, for which the Court has repeatedly reprimanded him. The length of the trial, its complexity and Milosevic's undermining tactics require the judges to maintain a high level of alertness and discernment throughout. While Milosevic treats the process that will decide his fate as if it were a game, the Court must be vigilant to not fall into his traps.