Judges Ponder Future of Milosevic Case

An apparent decline in the health of former Yugoslav president Slobodan Milosevic has led judges in The Hague to raise fundamental questions about the future of trial proceedings against him for alleged war crimes including genocide.



The case ground to a halt on November 15 after Milosevic, who insists on acting as his own lawyer despite long-term health problems caused by high blood-pressure, announced that he felt too unwell to continue. He has not returned to court since.



Following this latest delay in a trial which has already lasted nearly four years, the judges ordered a hearing to take place on November 29 to discuss the possibility of breaking up the proceedings against Milosevic into separate parts.



This would involve wrapping up that section of the case which relates to alleged crimes in Kosovo, and issuing a judgement on those counts far earlier than previously expected. The idea is presumably to safeguard at least one part of the trial from any further deteriorations in the health of the accused.



Milosevic has so far used up over three-quarters of the total time allotted to his defence case in dealing almost exclusively with Kosovo, where he stands accused of overseeing a massive campaign of ethnically cleansing Kosovo’s ethnic Albanian population in 1998 and 1999.



If the judges decide to conclude the Kosovo proceedings earlier than expected, Milosevic would still be left facing indictments which relate to the wars of the early Nineties in Croatia and Bosnia, the latter of which includes the charge of genocide.



But some analysts are concerned that severing the Kosovo indictment could result in the Croatia and Bosnia charges falling by the wayside.



When the issue of “severance” arose on a previous occasion in July 2004, prosecutors opposed the idea and asserted that separating off one part of the case would “inevitably” lead to the remaining charges not being tried.



“If Mr Milosevic’s health condition is deteriorating seriously, then that is a legitimate worry,” Richard Dicker, director of Human Rights Watch’s international justice programme, told IWPR.



The severance issue, Dicker said, would ultimately have to be decided based on a balance between the “overarching interests of justice” – to see the proceedings concluded – and Milosevic’s “fundamental right to a fair trial”.



The case against Milosevic was originally made up of three separate indictments relating respectively to the wars in Bosnia, Croatia and Kosovo. But in 2002 prosecutors succeeded in a bid to have the allegations dealt with in a single trial. Appeals judges noted at the time that separating the case into its component parts would remain an option in the event that the hugely complex joint proceedings proved unmanageable.



The judges announced that the time had come to discuss this option in a written order published on November 22. Justifying their decision, they pointed to the fragile state of Milosevic’s health and the erosion of the deadline for finishing the defence phase of the trial, which was originally set for October this year but has already been shifted back to March 2006. They also noted that a witness list submitted recently by Milosevic suggests that he is finally nearing the end of his evidence on Kosovo.



Besides ordering a hearing to discuss the option of breaking up the case, the judges also sought further submissions from medical experts on the state of the accused’s health. Tribunal doctors have clashed with Milosevic’s own medical team in their assessment of the situation.



Prosecutors and Milosevic’s legal advisors have both said that at this stage they will oppose moves to detach the Kosovo indictment from the rest of the case against him. The Serbian news agency B92 quoted Milosevic’s legal adviser Zdenko Tomanovic as saying that breaking up the trial was unnecessary and would “seriously damage” the defence game-plan.



The last time the matter arose in court, besides suggesting that a severance would jeopardise those charges that were put off for the future, prosecutors also argued that the accused’s alleged crimes in Bosnia, Croatia and Kosovo can only be properly understood when viewed in conjunction with one another.



Prosecution spokesperson Florence Hartmann confirmed that her office would be opposing any moves to sever the Kosovo charges, but declined to discuss the arguments behind this position prior to next week’s court hearing.



It remains unclear how events will pan out in the coming months if judges do indeed decide to sever the Kosovo indictment. Tribunal spokesperson Jim Landale told IWPR that as far as he was aware, this kind of decision had not been taken before by judges at the court.



It seems likely that one or both parties would appeal against any such move. The tribunal’s appeals chamber has previously overturned a number of important decisions made by judges in the Milosevic trial, including efforts to force the accused to take on defence lawyers against his wishes.



In the meantime, despite their concerns about the possible consequences for the Bosnia and Croatia charge sheets, some analysts sympathise with the trial chamber’s apparent desire to see at least part of the case against Milosevic wrapped up.



Dutch lawyer and long-time tribunal observer Heikelina Verrijn Stuart told IWPR that with the benefit of hindsight, it would in fact have been better to separate the charges against Milosevic a long time ago.



“The appeals chamber warned that a single trial could be long and complex,” she said. “But nobody realised how long and complex, and endless.”



Michael Farquhar is an IWPR reporter in London.