Karadzic, Milosevic Anticipated Srebrenica Massacre

With 33 trial days left in its case against Slobodan Milosevic, the Prosecution is unable to call all the witnesses remaining on its often-revised witness list. Lead Prosecutor Geoffrey Nice advised the Court that they have reached this state of affairs because of the time the Accused takes on cross examination. In an earlier representation, he said the Accused and the Amici together have taken two-thirds of the time spent during the prosecution's case. As a result, he told the judges, 'The Chamber may want to have in mind there will be several witnesses, important witnesses, we won't have time to call.'

The more significant the witness, the more time the Court allows Mr. Milosevic on cross examination. When Lord Owen testified last week, for example, the Prosecutor took approximately two hours, the Court initially allowed Milosevic three hours, but ended giving him almost four hours. The Court's generosity to the Accused derives from the legally supportable view that more leeway must be allowed a self-represented accused than one represented by professional counsel. Mr. Milosevic takes full advantage of the Court's consideration, rarely completing his questioning before his allotted time expires, while often pressing for additional time. The problem for the prosecution is compounded by the fact that a significant part of Milosevic's cross examination is irrelevant and repetitive.

While the Court threatens to end wasteful cross examination, it has rarely done so. The Court's idle threats give Milosevic little incentive to follow its direction. While casual trial observers have been heard to criticize Judge May for being too harsh on Milosevic and interrupting his cross examination, in fact, Judge May has allowed him extraordinary leeway. Judge May's irascible style may contribute to that impression, but his follow-through is distinctly lacking.

Noting that the Accused is quite capable by now of conducting a relevant and focused cross examination, Mr. Nice appeared to suggest that the Court do more to keep him in line. By using written witness statements in place of oral testimony for presenting the majority of its evidence, the Prosecution itself is now able to conduct its case in chief quite speedily. Mr. Nice suggested that the Court consider ordering both sides to comply with strict timetables, which he invited the Court to set in advance. The Prosecution will provide the Court with a chart identifying its remaining witnesses and the issues on which they are expected to testify. What the Prosecution proposes is that the Court decide which witnesses it wants to hear and for how long -- instead of seemingly leaving the matter to the Prosecution which has no control over the time Milosevic takes in cross examination.

The Prosecution faces a particularly difficult dilemma with so little time left to present its case. In addition to presenting crime base evidence on the Srebrenica massacres and the siege of Sarajevo, it must focus on 'linkage' evidence, that is, evidence which links Milosevic to the crimes committed in Bosnia. Linkage evidence is the most critical part of the Prosecution's case, for on it rests Milosevic's guilt or innocence for the crimes charged. Such evidence necessarily involves insider testimony, intercepted telephone conversations and documents. It also necessarily involves the acts and conduct of the Accused, as well as those of the Yugoslav Army and Serbian police. According to the Court's earlier rulings, the Prosecution must lead evidence of this type orally and the Accused must be allowed an opportunity to cross examine.

What it boils down to is that the most critical evidence at this stage will take the longest time, when there is precious little time left. It requires the Court to do what it has so far been unwilling to do: strictly limit Milosevic's cross examination to relevant matters, and stop him from wasting time with comments, arguments, attempts to present his own case (it is not the time) and putting repetitious questions when he doesn't get the answer he wants. Whether the Court is willing to take the case (and Milosevic) more firmly in hand will be seen in the next 33 trial days. Its action or inaction could significantly affect the outcome of the case.