Court Considers How Milosevic Case Will Proceed

Lead Prosecutor Geoffrey Nice formally advised the Trial Chamber that the prosecution will be requesting an extension of time to present its case against Slobodan Milsoevic. The Chamber had set May 16, 2003, as the date for completion of the prosecution's case, while advising it would grant an extension for time lost due to the accused's repeated illnesses. To date, the Chamber calculates Milosevic has missed 54 days otherwise scheduled for trial. The prosecution needs those additional days and more, Mr. Nice informed the Chamber. He will submit a more precise request in writing.

Even without an extension, the prosecution could barely complete its case before the summer recess. An additional 54 trial days translates to about 12 weeks court time -- under the shortened schedule established due to Milosevic's ill health. If additional time is granted and Milosevic continues to require extensive sick days, it may be the end of 2003 before the prosecution wraps up its case, i.e. nearly two years from the start date.

To expedite the proceeding, Mr. Nice pressed the Chamber to consider his proposal that more evidence be submitted in writing rather than through live witnesses. Pointing out that civil cases tried to a judge in the United Kingdom now allow substantial evidence to be presented in writing, subject to cross examination, he proposed the Chamber adopt the practice in this proceeding, despite the fact it is a criminal case of major public interest. The loss to the prosecution, he said, was the 'vitality of examination in chief,' a cost the prosecution is willing to bear to assure its case is presented as fully as possible. As for the public, Mr. Nice suggested summaries of the written witness statements could be made available after the testimony. Judge Robinson expressed concern that such heavy reliance on written statements would lessen the Chamber's ability to assess the demeanor of the witness.

In the Kosovo phase of the Milosevic case, a large part of the crime base evidence was given in writing, summarized briefly in court by the prosecutor, followed by an hour of cross examination by Milosevic. Tribunal Rule 92 bis allows this procedure for proof of 'a matter other than the acts and conduct of the accused as charged in the indictment.' The rule provides a list of factors that favor admission in writing and a shorter list of factors against it. Factors in favor include: the evidence is cumulative in that another witness has or will provide similar oral testimony; it relates to historical, political or military background; it is an analysis of the ethnic composition of the population; it concerns the impact of crimes on victims; it relates to issues of the accused's character; it relates to factors for consideration in sentencing. Factors against are: 'there is an overriding public interest in the evidence in question being presented orally;' an objecting party demonstrates it is unreliable or that its prejudicial value outweighs its probative value; or any other factors making it appropriate for the witness to attend for cross examination.

The Court required all witnesses whose statements were admitted under Rule 92 bis in the Kosovo phase of the case to appear in court so Milosevic would have an opportunity to cross examine them. In nearly all instances, Milosevic was given and took an hour for cross examination, resulting in his using more time during this part of the prosecution's case than the prosecutor. Notably, Rule 92 bis, as written, does not contemplate automatic cross examination when a witness's evidence is accepted in writing. Indeed, a finding that cross examination is appropriate appears to take the evidence out of the operation of Rule 92 bis. Nevertheless, the Milosevic Trial Chamber has not treated the rule in this way. In the Kosovo phase of the case, the Chamber has accepted written statements that fall within the factors favorable for admission, while requiring that the witness appear in court for cross examination.

It is unclear from Chamber rulings whether and to what extent the Chamber has considered that the public interest in an oral presentation of the evidence might override time saved by admitting it in writing. Perhaps this is because there is no one duty bound to advance the public interest before the Court. Yet it is undeniable that the public interest in this trial is great. Slobodan Milosevic is the first head of state to stand trial for war crimes, crimes against humanity and genocide. That alone makes the case a matter of significant interest to a broad public, including heads of state engaged in or contemplating engagement in armed conflicts -- and civilians harmed in those armed conflicts. More to the point, the public in and from the former Yugoslavia has a fundamental interest in this case. Though necessarily imperfect, the justice-making process helps establish truth, an essential element for building a peaceful future. The process is important for the millions of victims of Yugoslavia's 10 years of wars -- to have their voices heard, if only representatively, and to have their stories told. It is also important for those who participated in the wars, those who supported the policies leading to war and those who were lied to. As Croats and Serbs both know all too well, crimes of the past don't vanish because they are ignored.

The public's interest in this trial is harmed when large amounts of 'crime base' evidence are telescoped into a five minute summary, read in a monotone by a prosecutor. 'Crime base' evidence is legalese for the grievous harm that was perpetrated on individual human beings -- in mundane and grotesque ways. Reading that a man was sexually assaulted is far removed from hearing that man tell about the grave violation done to him by another human being. As it is, the stories of the wars' millions of victims can only be representative -- a select few individuals from a select few locations and times -- out of hundreds, perhaps thousands. To reduce them all to paper insulates the public as well as the perpetrator and other responsible parties from the impact those crimes must have if any portion of justice, accountability and ultimate healing is to occur.

Given the horrendous numbers of people massacred, tortured, brutalized and killed, there is no way the entire story of the former Yugoslavia's wars can be told, certainly not in any one trial. Compromises must be made. A long drawn out trial also loses its impact, as well as being technically difficult to manage and judge. The Milosevic trial has its unique problems, created by a self-represented accused who does not respect the process or acknowledge its legitimacy. His go-it-alone position likely contributes to his frequent illnesses and lack of stamina which has lost 54 trial days since last fall. His lack of professional expertise and his intent to use the process for his own ends takes more time, as does the Court's (proper) action in giving him more leeway because he is a self-represented accused.

For its part, the prosecution has a duty to prove the 66 count indictment it has brought against Milosevic. The Trial Chamber has ruled against most of the proposals the prosecution has suggested to expedite the process (such as allowing summarizing witnesses, imposing counsel on Milosevic, admitting written statements without cross examination) and Prosecutor Nice told the Court he would not revisit them. It doesn't leave many options. The prosecution can, of course, drop charges from the indictment. It already has in the case of Croatia, when it dropped the charge of genocide. It can reduce the number of crime sites and the number of witnesses per site. Again, it has done this.

Milosevic says he needs at least 800 more days to recover his health and prepare his case. He asked the Court to release him from custody to do this. The Court said no, but agreed to consider his complaints about the allegedly massive number of documents served on him by the prosecution.

With all this in mind, the Trial Chamber must chart a course for the rest of the trial -- one that meets as many of the different and legitimate interests as possible. It's pretty much assured they can't come up with a perfect solution. Perhaps the most one can hope for is the least worst.

Yet there is a stubbornness discernable in some of the positions that begs for a new look by those involved. Chief of those is to what degree Milosevic must be accommodated to assure he receives a fair trial -- particularly in light of his responsibility for his own disabilities at trial. It is hard to ignore the similarity between his manipulation of the trial process and his manipulation of events in the former Yugoslavia for 12 years. Certainly he has the right to a fair trial, even if he has denied it to others. But he does not have the right to make a mockery of the process by manipulating it for his own ends -- to the extent that the trial is either endless or so abbreviated that the picture of what happened is grotesquely distorted. This is true whether or not he is ultimately found guilty on some or all of the charges. The public has a right to have him answer those charges. They have a right to hear the evidence against him, except where it might harm someone. One can only trust that the Trial Chamber is considering that unrepresented public interest in its deliberations on how to bring this trial to a fair and just conclusion.