Muted End to Milosevic Prosecution

As prosecutors rest their case, doubts persist over the future of the trial.

Muted End to Milosevic Prosecution

As prosecutors rest their case, doubts persist over the future of the trial.

Wednesday, 9 November, 2005

Two weeks ago, when Hague prosecutors announced that they would be resting their case against Slobodan Milosevic, most court observers thought it would conclude with some drama.

This, after all, was the conclusion of proceedings against the first sitting head of state to be indicted for genocide.

But there was to be no last minute smoking gun, and no spectacular closing arguments in the prosecution’s final days.

Instead, both Milosevic and the judge overseeing his case, Richard May, fell ill, causing yet another delay in a trial that has already been postponed more than 60 times due to the accused’s bouts with flu and high blood pressure.

Prosecutors, fearful that another delay might harm their case irrevocably, decided on February 25 to conclude the proceedings by filing a decidedly lacklustre 14-page document, forgoing the last two days due to them. By doing so, they abandoned plans to call five further witnesses, at least one of whom would have testified about the Yugoslav army’s role in the 1995 Srebrenica massacre and could thereby have strengthened the genocide charge.

Instead, the prosecution asked that it be allowed to submit additional evidence, including an interview Milosevic gave to Palma TV in December 2000 in which he stated that the Serbian “blockade” against Republika Srpska was merely a “clever political manoeuvre in order to decrease the severity of sanctions against Yugoslavia”. It also requested permission to submit raw footage of interviews with key Yugoslav leaders conducted by the producers of the BBC documentary “The Death of Yugoslavia”.

Just hours after prosecutors filed the motion, the trial chamber granted the request – in what was perhaps the court’s fastest ever turnaround.

With that, the two-year case that involved nearly 300 witnesses, some of them insiders who had turned on their former boss, others survivors of the crimes Milosevic is said to have orchestrated, came to an end.

“It was a very difficult decision to take,” said prosecution spokeswoman Florence Hartmann, adding that some of the remaining witnesses were important for the case.

Prosecutors made the decision because the trial chamber had ruled that once they finished their case, the trial would adjourn and Milosevic would be given three months to prepare his defence. However, the clock on that three-month period could not start ticking until the case was complete, and prosecutors worry that further delays will both harm the tribunal’s credibility and increase the possibility that Milosevic might die before proceedings are complete.

By resting their case early, prosecutors set the clock in motion. The court ruled that Milosevic would have to begin his defence on June 8.

But while prosecutors managed to avoid any more delays due to Milosevic’s illness, the failing health of Judge May will likely cause additional delays.

The court has not said what is ailing the 65-year-old judge, but his illness was deemed sufficiently serious as to necessitate his resignation, effective May 31.

Tribunal president Theodor Meron expressed his regret that May would be leaving the court, but said that he didn’t think the departure would affect the trial.

The tribunal’s rules initially stated that should a judge fall ill, a new one could be appointed and once he or she was familiar with the evidence, the trial could proceed, provided the defendant consented. If the accused did not agree, the trial would have to be interrupted until the judge returned, or it would have to be declared a mistrial.

However, shortly after Meron was elected president last March, the tribunal amended the rules to state that an accused person could appeal against a change of judge under these circumstance, but the trial would continue uninterrupted while the appeals chamber deliberated.

This reform was undertaken with precisely the current type of situation in mind. Last July, in an interview with IWPR, Meron stated that the tribunal could not be “completely dependent on the consent of counsel for a new judge to join the remaining two judges on the panel”.

But some legal experts worry that it may not be enough to prevent further delays.

First, there is the question of how long it will take for a new judge to familiarise him - or herself with the case. There are more than 30,000 pages of transcripts from witness testimony, nearly 600,000 pages of written evidence, and hundreds of videotapes and telephone intercepts.

Digesting that amount of information could take significantly longer than three months, according to numerous legal experts consulted by IWPR.

Then there is the question of how Milosevic might act to complicate the matter. Given that he is likely to go to jail for the rest of his life, the former Yugoslav president appears to be trying to draw out his trial as long as possible – and that means he is likely to challenge the appointment of a new judge.

None of the amici curiae, the “friends of the court” assigned to assist him in the absence of a defence lawyer, were available for comment this week, but lawyers from the International Committee to Defend Slobodan Milosevic, ICDSM, said they believed May’s resignation constituted grounds for a mistrial.

“Although it appears that the ICTY [Hague tribunal] will push to continue the matter despite Richard May’s resignation, it is important to note that in common-law proceedings this situation would normally constitute a mistrial, and require that proceedings start anew,” said Maitre Dickson, a ICDSM lawyer, in an interview with the Germany daily Junge Welt.

Stacy Sullivan is IWPR’s project manager in The Hague.

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