NATO & KLA Fair Game, Judge Rules: Milosevic is allowed to question about role of other forces in damage to Kosovo

After a three week hiatus due to the Accused's ill health and court business, the trial against Slobodan Milosevic for genocide, war crimes and crimes against humanity resumed on April 8, 2002. No sooner had it resumed, however, than it was closed to the public to receive testimony from two protected witnesses. Before going into private session, the Trial Chamber issued a ruling on the scope of cross examination, an issue of concern since Milosevic has actively undertaken his own defense.

While ICTY rules allow an Accused to raise issues relevant to his theory of the case on cross examination, they must be limited to what that witness has some personal knowledge of. (Rule 90 H (i) (ii)) Milosevic's cross examination has not always been so limited. Often, his questions are barely disguised political speeches and diatribes against NATO and the Kosovo Liberation Army (KLA), in addition to being repetitive, argumentative and abusive of witnesses. The Prosecution addressed concerns about this to the Trial Chamber over a month ago, which then requested submissions from the Prosecutor and Amici Curiae on the scope of cross examination.

Today, the Trial Chamber ruled that the accused is entitled to raise issues regarding KLA and NATO activity which are relevant to the case as a potential defense or to test a witness's credibility. While stating that it would continue to provide the accused with leeway in cross examination because he is a non-professional defending himself, the Chamber also said it would continue to exercise control over cross examination to prevent argumentative, repetitious and clearly irrelevant questioning. Judge May further stated that the Chamber had noted the Accused's lengthy questions and speech-making and would continue to place limits on such cross examination as required.

While stating it was essentially adopting the Amici's position, the Trial Chamber's ruling encompassed the Prosecution's position as well. No one argued, and the Chamber did not hold, that NATO and KLA activity were admissible under the disfavored principle of tu quoque, i.e. excusing criminal conduct because the other side engaged in it as well. (See CIJ Report 'Milosevic To Be Reined In?' 25 February 2002). Even Milosevic, when he addressed the Chamber, stated forcefully that he was not raising issues around NATO and the KLA as a tu quoque defense, 'I want to make things quite clear. It is not a question of any kind of justification of alleged crimes of the Yugoslav Army and police . . . . I submit the Yugoslav Army and police did not commit crimes. . . . The crimes were committed by NATO and the KLA. Ultimately, the truth will out and the public will see.'

Milosevic went on to complain loudly about Judge May shutting off his microphone 'ten times' during the last session, interrupting and not letting him complete his cross examination. Judge May was not moved, 'You've heard our ruling. We will allow what is reasonable and if it is not, we will continue to switch off your microphone.'

In essence, the Trial Chamber's ruling did no more than memorialize current practice in the form of a written order. The underlying issue is one of time, since the scope of permissible cross examination affects the length of the trial. What Judge May reiterated was that the Chamber would continue giving the accused leeway in cross examination because of his non-professional status and the need to assure a fair trial. That translates into a longer trial. The Prosecution's original estimate of a two year trial was based on Milsoevic's non-participation. Judge May stated that the Trial Chamber was considering imposing a time limit on the prosecution's case, particularly in regard to the Bosnia and Croatia sections of the indictment. He asked the Prosecution to assist the Court in determining whether the full extent of the Bosnia case as pleaded needs to be presented, suggesting it might be possible to reduce the number of municipalities on which evidence is given.

Today's ruling on the scope of cross examination, taken with Judge May's comment on the need to limit the Prosecution's Bosnia case, suggests that the more time Milosevic takes, the less time will be available to his accusers – subject only to the Trial Chambers' ongoing restrictions and active intervention. This power cannot have escaped Milosevic's notice and he can be expected to use it to the utmost, continuing to test Judge May's patience.

Issues concerning the Prosecution's Bosnia case will be taken up later in the week.