Milosevic Dominates Trial: Time saving procedure allows Accused to cross examine witnesses who have not orally testified

From the gallery in the Milosevic trial these days, it looks like the accused has taken over the prosecution's case. More than two dozen 'crime-based' witnesses, all survivors of the Kosovo war which cost them family, friends, property and means of livelihood, have appeared before the Tribunal during the last several weeks. But they have not come to testify. Their sole purpose for appearing before the Tribunal is for the accused to cross examine them. Having made heroic efforts to come to the international criminal court, they leave without having told their stories. Whatever we learn of their personal tragedies comes from an abbreviated summary, read in monotone by a member of the prosecution team, or from inklings gleaned from their responses to Milosevic's cross examination.

Earlier statements they gave to the Office of the Prosecutor (OTP), reduced to writing and attested, are entered into evidence as exhibits under a special Tribunal rule called 'Rule 92bis.' The rule allows written witness statements in lieu of oral testimony where the evidence is cumulative. In a trial with thousands of victims and hundreds of crime scenes, tools like Rule 92bis allow for effective presentation of facts within a reasonable time frame. If every witness told her or his story to the court, the trial would be endless. If too few do, one can't get a picture of what actually happened, for these were not just crimes against selected individuals but against a people. Rule 92bis allows the Court to hear oral testimony from several witnesses from each crime site and to receive additional statements in writing which substantiate the oral testimony and present a more complete picture of what happened.

The twist that is turning the trial into the Milosevic Show comes from the Court's well-intentioned and legally sound ruling that Milosevic must be entitled to cross examine all witnesses, even those whose testimony is only in writing. The problem it creates is exacerbated by a self-represented accused who uses cross examination to present his case to the public, while disputing the legality of the entire proceeding.

Under the 92bis procedure, each witness is brought before the Court, the Prosecutor makes a brief introductory statement including reading a summary paragraph or two of what the witness experienced, then the witness is turned over to Milosevic for an hour of cross examination. For the most part, Milosevic has shown an aversion to questioning witnesses about the major events they've described in their written statements, such as massive deportations, massacres, torture and beatings, looting and destruction of property. Instead, he asks repetitive and badgering questions designed to confuse the witnesses and damage their credibility. Another favorite technique is to present his case in the guise of questions, faulting witnesses for their inability to testify to things they know nothing about.

The frustration of the witnesses is obvious. As Sadik Januzi exclaimed when the Court dismissed him at the end of cross examination, 'You haven?t asked what I went through -- the massacre.' To which the presiding judge responded inadequately, 'We have your statement, Mr. Januzi.' Mr. Januzi was the sole survivor of a massacre perpetrated by Serb forces when they gunned down 70 unarmed captives. He was saved when he fell under three dead bodies and later made his way to safety.
Nor did we hear from Mrs. Aferdita Hajrizi's lips what she experienced the evening of March 24, 1999, 'when Serb police broke into her family's home and shot to death her husband, Agim; her oldest son Ilir, who was then 11 years old, and her mother-in-law,' according to the prosecutor's terse summary.

The prosecutor introduced Isa Raka to the Court as a 30 year old married man. It was his second marriage, the prosecutor said. His first wife, then pregnant, was injured by Serb forces and died a few days later. The baby died as well. Not only did Isa Raka not get to tell his story in court. He was subjected to brutal cross examination by the accused who insinuated that it was his fault his wife had died because he was unable to get her medical attention due to the fighting.

In all cases, these tragedies were told in abbreviated form by a third person summarizing a written statement. Any healing a witness might secure from telling his story to a broader public is lost. Nor can the Court weigh the witness?s own words against the often contemptuous cross examination. Certainly, the public loses this opportunity.

Three rulings by the Trial Chamber have created this strange proceeding which resembles a sacrificial offering to a grand inquisitor more than it does a judicial trial. First, the Court refused to allow OTP investigators to give a summary overview of all witness statements, where they had read all the statements but not interviewed the witnesses. Second is the 92bis procedure described above. Third, the Court set a mandatory time limit on the length of the Prosecution's case of April 10, 2003, for proving all three indictments -- Kosovo, Croatia and Bosnia-Herzegovina. (A three judge panel of the Appeals Chamber recently turned down the prosecution's request to be allowed to appeal the ruling.)

The rulings, taken together, have placed the OTP in a predicament. Under a tight timeline, they must prove a 66 count indictment covering crimes committed over a decade in three wars involving a quarter of a million dead and more than three million displaced persons without the ability to present a coherent overview of thousands of witness' statements. Further, they can submit cumulative evidence in writing but only if they bring the witnesses to court for cross examination by a self-represented accused, who has no interest in shortening his cross examination to allow the prosecution adequate time to present its case. Because of the Court-imposed time limit, the OTP indicated that it was likely to present all possible witnesses through the 92bis procedure. This includes all but a handful of the survivors. And it is the survivors who can paint the clearest picture of events that the prosecution claims constitute war crimes, crimes against humanity and genocide -- or, perhaps, it is that they add color to what would otherwise remain a black and white rendition of what occurred.

If the trial proceeds in this manner, what actually happened to the people may well remain unclear to anyone but those behind the courtroom's bullet proof glass. Neither the press or the public, including people throughout the former Yugoslavia, will have access to the full story. What happened will appear like events in a shadow play, partly revealed by a few testimonies and brief summaries, intentionally clouded by Milosevic's distorted cross examination. The trial then, due to expediency, takes on an aspect of a secret trial. In the end, the Court may have sufficient evidence to reach a legal decision. But that is not the sole mission of this Tribunal. As set out in its founding resolution, it is also to bring justice to the victims and to contribute to building peace and reconciliation in the region. Accomplishing these goals is problematic under the best conditions. The Milosevic trial, as it is being played out, may end up being one more impediment to their achievement rather than the help envisioned by the United Nations in founding the Tribunal.