Prosecutor Confronts Trial Chamber: Length of case not their fault

Laying out the schedule for proving the remainder of his case on Kosovo, lead prosecutor Geoffrey Nice informed the Trial Chamber that it would not be possible to complete it by the July 26, 2002 deadline earlier imposed by the Chamber. This prompted Presiding Judge May to remind counsel that he had unsuccessfully appealed the overall deadline for presenting the prosecution's case (April 10, 2003). 'What we wish to see is some acknowledgement you are working towards it. When I see a list of . . . eighty to ninety witnesses [you have yet to call], I am drawn to the conclusion that no attempt is being made to comply with the order.'

For the first time in the three month trial, the otherwise unflappable Mr. Nice took umbrage at Judge May's characterization of the prosecution's case. 'I am inclined to be offended by it,' he said, informing the court that he had shielded it from the harsher feelings of the other lawyers and investigators on the prosecution team. While Judge May interrupted to ask him not to be offended, Mr. Nice went on to review the steps the prosecution has taken to reduce its case, while still fulfilling its duty to prove the charges.

'We have worked as hard as we can to meet a timetable the entire prosecution team thinks is unworkable.' Mr. Nice pointed out that the Chamber had provided no explanation for limiting proof of the Kosovo part of the indictment to ninety days. If the prosecution's case is so limited, Mr. Nice concluded, it will not be able to offer evidence on half the killing sites (six), which, he suggested, would be improper. Nor would he argue for conviction on charges which were not supported by sufficient evidence. Mr. Nice also stated that only 67 hours have so far been devoted to its case in chief, which totals 13 full court days (having only three courtrooms and six active cases limits the Milosevic case to approximately 4 ½ hours per day). Moreover, under the 92bis procedure, which allows the accused to orally cross examine witnesses whose evidence in chief is submitted in written form, the prosecution has taken just under 6 hours, while the accused has taken more than 26 hours.

Mr. Nice disclosed some of the difficulties the prosecution has faced in a case he called, 'the largest case of its kind since World War II.' First, witnesses have been extraordinarily reluctant to testify. Intimating his awareness of public criticism over the prosecution's order and choice of witnesses, Mr. Nice said that its first witness, Mr. Mahmut Bakali, was 'one of the very few who had the courage to come to court and give evidence.' Over time, he said, people are becoming braver and more willing to testify, though this likely does not include insiders, those close to the Milosevic throne. According to Mr. Nice, 'Cases like this would be easy to prove if one member of the inner circle was able to come and give accurate evidence of what happened. The case could be almost proved with one [such witness]. It is not like that. The closer to the accused, the more difficult it is to approach and to use [the witness].'

Mr. Nice addressed an anomaly of the Tribunal's more adversarial system that requires a party to 'take the witness in toto,' without the ability to disavow some of what he is saying. In other words, a party cannot cross examine his or her own witness to try to discredit part of the testimony. Yet the closer a witness is to the events at issue, the more likely he is to hide or distort his own involvement in crimes.

The prosecutor suggested that the problem might be ameliorated if the Court calls certain witnesses (which it has the power to do under Rule 98). He implied witnesses might be more likely to respond to a court summons than to persuasion by the prosecution, though the court's power to compel attendance is severely limited. As court witnesses, they would be subject to cross examination by the prosecution and the defense, as well, providing the opportunity for more complete examination.

He also voiced his frustration with 'Rule 70' witnesses whose governments seek to limit their testimony. Stating that he disagreed with the conditions imposed by those unnamed governments, he advised the court that he was not prepared to put his name on their requests for protective measures. As a result, an estimated one to two weeks of testimony remains in limbo and may not be presented. (Rule 70 protects confidential information provided to the prosecutor solely for the purpose of generating new evidence. Without the source's consent, the prosecutor may not disclose the information. Moreover, if the source consents to testify about the information provided, the court may not compel the witness to provide additional evidence.)

While not ruling on any of the issues raised by the prosecutor, the Trial Chamber, following Mr. Nice's argument, appeared more sensitive to the difficulties encountered in attempting to prove a trial of this magnitude and complexity. It also appeared to have stepped back from its conclusion that the OTP was doing nothing to streamline its case as ordered by the Chamber. Nevertheless, when Judge May asked how much longer the prosecution would need to prove its case and Mr. Nice replied, 'two months,' the judge concluded that would delay the start of the Croatia and Bosnia segments until the beginning of 2003, 'which cannot happen,' he concluded.

The Court and the Prosecution are struggling with issues not found in the usual criminal trial, nor to such an extent in other trials before the Tribunal. Confronted with the man who is accused of bearing the greatest overall responsibility for the murder of a quarter million people, the ethnic cleansing of vast territories, including massive property destruction and cultural devastation designed to erase every trace of a people's connection with the disputed land, as well as the use of rape and other intentional torture and humiliation as weapons of war and ethnic cleansing, what is the minimum necessary to prove such a case? Is it sufficient, as one of the judges suggested at one point, to prove command responsibility and leave it at that? Obviously not. That crimes were committed must also be proven. But how many? It is not sufficient to prove one murder or even one massacre, when the charge is use of killing as part of an overall strategy of ethnic cleansing. One rape could be an aberration, the action of a rogue soldier. So might a dozen rapes in different areas at different times. How many rapes or murders evidence a pattern, a pattern which suggests they are part of a larger strategy? The same question arises with deportations. As Mr. Nice said, one insider who could testify that murder and rape were part of an overall strategy of ethnic cleansing might prove the whole case. So would a confession. Neither is likely to happen. Nor is there any legal standard that says ten massacres indicate a pattern, while six or eight or nine are coincidental or the result of military training or orders, rather than political decisions for which a head of state is responsible.

Beyond questions concerning sufficiency of the legal evidence are questions about what is needed by the victims and survivors, what is required for the general population of the former Yugoslavia, what is enough for the larger world public. There is a larger purpose for trials of this type, recognized in the Tribunal?s founding documents, which is in danger of being lost under the practical pressures of managing a case of such magnitude. To one degree or another, people have needs to see justice done (however imperfectly), to have their realities confirmed, to work towards a common understanding of history, and to have enough information to stimulate thought and reflection, whether about events that happened or those that might be prevented.

There is no legal roadmap for this. The Trial Chamber must struggle with these significant questions and try to reach a balance of interests, while at base assuring the accused a fair trial. Perhaps what Geoffrey Nice was saying is that the prosecution does not aim to be an impediment in this process, but of assistance. While the prosecution has a particular role to play, its overall goal is the same as that of the Court -- the doing of justice.