Prosecution Wins One -- Expert Testimony Allowed: Military analyst says Kosovo operations required planning at highest level

Despite objections from the Amici Curiae and Mr. Milosevic, the Trial Chamber ruled that most of the testimony of prosecution expert witness Phillip Coo was admissible. Mr. Coo is a military analyst who works for the Office of the Prosecutor.

The Amici objected to his testimony on several grounds. 1. As an employee of the OTP he would not be seen as objective. 2. Some of his statements and conclusions are based on insufficient evidence. 3. He makes conclusions on 'ultimate issues' which it is for the Court to decide.

The Court quickly disposed of the first two issues. Both, the Court held, are matters of weight not admissibility. In other words, the witness's evidence will be heard by the Court and it is for the Court to decide how significant it is.

The third issue, the Court said, is the most significant. Formerly, the common law rule prohibited experts from giving their conclusions on 'ultimate issues' that the Court would have to decide. An ultimate issue is one that must be decided in order for there to be a verdict of guilt or innocence. For example, whether Milosevic knew that large numbers of the Kosovar Albanian population were forcibly expelled from Kosovo is an ultimate issue. Under the old rule, an expert would not be allowed to comment on it. However, as the Court pointed out, 'that rule is very much in abeyance,' in leading common law jurisdictions like the UK and US. As a result, the Court found, 'it has no standing in an international tribunal where the trial chamber consists of professional judges well able to decide for themselves on matters even if an opinion has been offered by a witness.' The rule, the court said, was originally adopted for the protection of juries.

This means that Mr. Coo can give his expert opinion that FRY and Serbian military operations in Kosovo directly following the first NATO bomb attack 'required detailed planning by the military and police on the authority of Milosevic months before the Spring 1999 operations began.' Whether the Court finds his opinion helpful or not and to what degree, the Court will still have to decide for itself whether a plan existed and whether Milosevic was behind it.

The only part of the expert report the Court excluded was that based on observations or questions made by Milosevic in cross examination. As the Court has warned Milosevic many times, his cross examination is not evidence. Since he has repeatedly acknowledged the primacy of his own authority during cross examination, this time he might be grateful for the Court's restrictions.