Milosevic Defence Blow

Wednesday, 9 November, 2005

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Ana Uzelac

Former Yugoslav president Slobodan Milosevic appeared in court this week to request more time to prepare his defence - which he hopes will re-write the bloody history of the Balkan wars in his favour.

But the judges instead confirmed that the trial would resume in two weeks - not a day later - and repeated their earlier ruling that the defendant has only 150 working days to present his case.

Setting the tone for the coming months, the three-man panel also sternly warned Milosevic that he should not try to “make speeches” during his defence, which will be heavily political, if his performance in the courtroom on June 17 is anything to go by.

Milosevic will enter the Hague courtroom as scheduled on July 5 to begin defending himself in the most high profile war crimes hearing in Europe since the Nuremberg trials.

In court this week, the defendant said he would use the remaining time at his disposal to fight the “most horrible false accusations” against him and his country. He signalled his intention to call 1,631 witness, claiming this was only a fraction of the “tens of thousands of people who volunteered to testify" in his defence.

The judges decided against putting any formal limitations on the number of witnesses the defendant can call, choosing instead to let Milosevic decide which of those he intends to call fit into 150 working days allotted to him.

However, they turned down Milosevic’s verbal request to subpoena some of the more high-profile international politicians on the witness list - including the former US president Bill Clinton, British prime minister Tony Blair and the ex-head of the German government Hans Dietrich Genscher - asking him to set this out in writing.

The judges also asked the defendant to put in writing his request for the tribunal to issue binding orders for the disclosure of the intelligence documents of certain western countries who were active in the former Yugoslavia during the wars.

Somewhat surprisingly, Milosevic has also asked the tribunal to order the disclosure of documents from Serbia and Montenegro's intelligence archive, which the Belgrade authorities have long fought to keep secret.

The judges' demand for written requests may go unanswered. The defendant refuses to recognise the legitimacy of the Hague tribunal - and does not enter into written correspondence with its institutions.

Yet this pre-defence conference, which was held to help the court manage the defence stage of the trial, showed that despite his formal refusal to recognise the tribunal, Milosevic is working hard on his case.

Dressed in a crisp blue suit and a red tie, the former Serb leader was alert and eloquent, debating the finer details of rules and procedures of the court with the presiding judge Patrick Robinson, who assumed the post after the resignation of Richard May earlier this year for health reasons.

Milosevic was visibly upset about the limited time he has been given to build his defence, saying his preparations had been hampered by the abundance of court materials to read and his own poor health - which had limited his working week to three days on doctors’ orders.

This restriction came after medical experts had forbidden him to work from April 14 to May 25 of this year - losing him 41 days of the three months he had been granted to prepare his defence.

The defendant asked that he be given more time to prepare his case - which would effectively postpone the restart of the trial until after the summer recess, at the end of August. “If you deprive me of the time and the opportunity to prepare my defence you’re essentially depriving me of my right to defence,” he said.

The amicus curiae, or friend of the court, Stephen Kay, appealed to the court to give the defendant until after until the summer recess, saying this would not lose a great amount of trial time and would be to “the great advantage of the administration of justice”.

The trial chamber voiced doubts over Milosevic's claims that he had been forbidden to contact his legal assistants during the 41 days of imposed rest, and asked the registrar to provide additional information to support this.

"When the chamber gets information, [it] will then be in a good position to determine how to approach any difficulty in how you will present your case,” Judge Robinson told the defendant. “[We] may be inclined to show some flexibility if you experience difficulty.”

Tribunal insiders believe that this is an indication that the judges may be willing to give Milosevic some additional time during the defence part of the trial, should the need arise, rather than allow him extra time up front to prepare his case.

The defendant also insisted that it was unfair to give him 150 trial days for his defence, when the prosecution had been granted twice as much time. Though it has to be said that a large part of the latter had been taken up by the accused for cross-examination. Aside from setting dates and scheduling the length of the defence part of the trial, this week’s proceedings gave the public an insight into Milosevic's possible defence strategy.

During the course of the hearing, it transpired that Milosevic was planning to begin his defence by introducing several expert witnesses to provide a “wider context” to the case – legal and historical.

During the prosecution phase of the trial, the defendant had insisted that there was “only one war in Yugoslavia: war against Yugoslavia” and - judging by a list of witnesses legal assistant Zdenko Tomanovic provided IWPR - it would seem that this is the “wider context” that Milosevic will seek to establish.

According to Tomanovic - one of three legal assistants employed by the defendant, who has consistently refused to accept defence counsel from a court he does not recognise as legitimate - some of the witnesses who have already agreed to testify include members of the French and German military and intelligence services who either worked in former Yugoslavia or on matters connected to the region during the wars.

Others named on the list include the former head of French counter-intelligence service and French parliamentary deputy Yves Bonnet, known for his staunch support for the Belgrade regime through the time of war and sanctions; the former Russian prime minister and minister of foreign affairs Yevgeny Primakov and the ex-Russian chief of staff Leonid Ivashov - both staunchly opposed to NATO air strikes on Serbia during the Kosovo crisis.

From these witnesses, it seems that Milosevic’s strategy might contain at least some elements of tu quoque - a legal approach in which one attempts to defend oneself from criticism by attacking the accuser, in this case western governments. But the tribunal has already rejected this in an earlier trial as “fallacious and inapplicable”, since it “amounts to saying that breaches of international humanitarian law committed by the enemy, justify similar breaches”.

The prosecution - apparently also trying to get the measure of Milosevic’s defence strategy - insisted that the witness list Milosevic submitted should be more detailed, containing not only witnesses’ names - unless they are protected - but also a summary of what their testimony will be about. Prosecutor Geoffrey Nice insisted that such summaries were necessary if the trial chamber was to manage the case efficiently.

But the judges refused to ask for more detail on the grounds that the trial chamber had enough information to go on, and that such a decision would infringe Milosevic's right to keep his defence strategy under wraps before the restart of the trial.

Ana Uzelac is IWPR project manager in The Hague.