Milosevic To Be Reined In? Prosecutor asks Court to limit improper cross examination

After ten days of trial and four survivor witnesses, it is clear that Slobodan Milosevic will use cross-examination more as a way to present his own case than to challenge the prosecution witnesses.

ICTY rule 90 H allows raising new issues through cross-examination that tend to prove the cross-examiner's alternative view of the case as long as the witness being cross-examined is able to give relevant evidence. Under Common Law rules of evidence, it would not be permitted. The accused would have to present evidence to support a contradictory theory of the case through his own witnesses after the close of the prosecution's case.

However, ICTY Rule 90 H also requires that counsel explain to the witness the nature of the case they are trying to establish. Since Mr. Milosevic has chosen to not be represented by counsel, he is conducting cross-examination himself. Though he continues to question the prosecution's witnesses on matters relevant to his theory of the case, he has not explained to them what he is trying to establish. Because he is not represented by counsel, the court has given him more leeway in cross-examination, though Judge May has increasingly intervened to stop commentary and repetitive questioning that elicits nothing while allowing Mr. Milosevic to make unsubstantiated statements as if they were fact.

After more than two weeks of trial during which the prosecutors made no objections to cross-examination, the Prosecutor on Tuesday addressed concerns about the scope of cross-examination to the Chamber. Prosecutor Geoffrey Nice acknowledged the need to provide an unrepresented accused with more latitude and observed that, for that reason and others, the prosecution had not made objections during cross-examination.

Judge May said the Chamber approved of the prosecution's non-interventionist policy, 'This is not a jury trial. Therefore, it's not helpful to have counsel bobbing up and down. We're a tribunal of professional judges. We should be able to decide for ourselves.'

Nevertheless, Mr. Nice expressed concern about the large quantity of comment and argument Mr. Milosevic has introduced into his cross-examination, which might be misleading and seen as evidence by future witnesses and, one supposes, the larger public audience. He requested the Chamber to make sure that the accused understands the rules and that he be kept to them. Other concerns about this manner of questioning not expressly mentioned include time consumption, since it is likely Mr. Milosevic will present his own witnesses to support his contentions, intimidation of witnesses, both those being cross-examined and those who will testify in the future, and the fact that such evidence is more properly and expeditiously presented during the accused's case-in-chief. And, while some latitude is allowed to cross-examine a witness about his alternative and contradictory view of the case, commentary on the evidence is clearly improper. The time for that is during argument.

For example, in cross-examining Mr. Halil Merina on February 25, who testified about a massacre of 11 civilians in his village of Landovica following the killing of three policemen and one civilian, the torching of houses and his forced exodus to Albania, Mr. Milosevic pressed Mr. Merina for information about NATO bombing and alleged KLA murders of Albanian civilians and police. The witness repeatedly answered that he knew nothing about KLA activity or about NATO bombing since he was in Albania at the time. A frustrated Mr. Milosevic concluded, 'Quite obviously, you know nothing of what I'm asking. . . . Gentlemen, you're bringing in witnesses to abuse me.' Judge May interrupted with a rebuke, 'That's a comment. You can give your evidence in due time. The witness says he knows nothing and it's pointless to ask him about things he knows nothing about.'

In asking the Chamber to provide Mr. Milosevic with further guidance about permissible cross-examination, Mr. Nice stressed that it was important for the prosecution to know whether Mr. Milosevic is challenging the witness's evidence or advancing an alternative view. Judge May acknowledged that the Chamber was allowing Mr. Milosevic more leeway in cross-examination because he is a litigant, not professional counsel. He expressed some concern about cross-examination that addresses matters beyond those raised in the witness's direct testimony, such as those concerning the KLA and NATO bombing, since Mr. Milosevic will have an opportunity to present evidence concerning those issues after the close of the prosecution's case. The amici curiae and the Office of the Prosecutor (OTP) will brief the issue for the Chamber so it can thoroughly consider the issue now that the trial has begun and Mr. Milosevic's approach is known.

Judge May also asked the lawyers to brief the extent to which the international criminal procedural defense of tu quoque can be advanced in this trial. Tu quoque literally means 'You, too', i.e. 'we committed crimes, but you did it too.' At the Nuremberg military trials, for example, that Tribunal ruled the tu quoque defense irrelevant, though it relented and allowed U.S. Admiral Chester Nimitz to testify that U.S. submarine practices had been the same as those of Germany. As a result, German Admiral Donitz was acquitted.

In the Milosevic trial, the tu quoque defense might foreseeably be raised to support one or both of two contentions. First, perhaps Serb forces attempted to ethnically cleanse Kosovo of Albanians, but Albanians attempted to ethnically cleanse it of Serbs following the end of the war and their return to the province. Second, perhaps Serb forces killed some civilians and destroyed non-military property in defending their country from NATO attack, but NATO killed many civilians as well, and its bombing, including carpet bombing, was far more destructive.

Given Mr. Milosevic's strategy of cross-examination, unless the court further reins him in, he will continue to present his evidence through comment and questions to the prosecution's witnesses. Unlike those he is accused of victimizing, unless he takes the stand in his own defense -- an unlikely event -- he may never be subject to cross-examination himself. Following receipt and consideration of briefs by amici and the OTP, the Chamber will revisit the issue and provide Mr. Milosevic more guidance, which in turn could provide the witnesses more protection.