Tempers Flare as Court Approaches Summer Break

There appears to be some confusion in roles these days in Courtroom One. An amicus is acting like defense counsel for the former Republic of Serbia, while at least one of the judges thinks the prosecutor is telling him how to manage the case. It could be that everyone is greatly in need of the summer break.

For some time now, the Court has shown impatience with Branislav Tapuskovic's approach to cross examination in his role as amicus curiae. On more than one occasion, Judge May has reminded him that he is not defense counsel and that his cross examination is more akin to putting on an affirmative defense for Milosevic than assisting the Court.

A few days ago, Mr. Tapuskovic cross examined General Imra Agotic, who testified on direct examination about the chain of command in the Yugoslav People’s Army (JNA), the Serbianization and ultimate dissolution of the JNA, its transfer of weapons to rebel Croatian Serbs and disarming of Croatian government forces and the negotiations he headed between Croatia and the JNA which led to a cease fire at the beginning of 1992. Rather than cross examining the witness on points that Milosevic missed, Mr. Tapuskovic questioned the General about the Croatian Spring of the early 1970’s, another witness's testimony about factors unifying Yugoslavia, and the aftermath of Operation Storm in 1995.

Judge May was the first to stop the Amicus and ask, “I question how you see your role. You are repeating what the Accused is saying. You’re not here to represent Serbia but to assist the Court.” When Mr. Tapuskovic raised Operation Storm and subsequent harm to Croatian Serbs in August 1995, Judge Kwon, usually reticent, intervened: “Since you are a legal expert, [your role] is different from the Accused. You dealt with Operation Storm and later events which took place much after events in the indictment. What relevance does it have in relation to the indictment?” The Accused has been indicted for crimes committed in Croatia between August 1991 through June 1992. What Judge Kwon wanted to know was how anything the Croatian Army may have done three years after Serbian forces allegedly committed crimes against the Croatian civilian population could have any relevance for this indictment.

In the process of trying to explain the relevance of the issues he raised, Mr. Tapuskovic stated, “I’m confident there were no plans to engage in crimes at that time [when the SFRY broke up]. The Amici take the position that this was a civil war.” That is a shocking statement for an amicus to make. (Since Mr. Kay and Mr. McCormack were not in court, it is unclear whether this is a view they share.) Clearly, Mr. Tapuskovic is quite sincere in his belief, though it shows a lack of objectivity that has affected his position as amicus. From Milosevic’s assertions and cross examination, it appears that will be part of his defense. However, as the Trial Chamber has repeatedly tried to explain to Mr. Tapuskovic, he is not the Accused’s counsel, but a helper to the Court. Utlimately it will be for the Court to decide whether the war in Croatia was a civil war in which the Accused had no part. It does not help the Court for an amicus to take a position on an ultimate issue in the case.

For his part, Mr. Tapuskovic argued that Operation Storm is what the Serbs in the Krajina feared when the new independent Croatian state was formed, i.e. that they would be driven out of Croatia, beaten and killed and their property burned and looted. If this is proven, the Amicus appears to believe, it shows the Croatian Serbs were acting in anticipatory self-defense when they established autonomous provinces, took up arms and drove the non-Serb population out. The problem is there is no such defense. Something that happens later can’t justify what has happened before. Operation Storm is more likely not to have occurred without Croatian Serb actions in 1991 and 1992.

Judge Kwon asked Mr. Tapuskovic whether he was raising self-defense or a tu quoque defense. The latter essentially means ‘I may have done what you say, but you did it, too.’ It is not a defense recognized by the ICTY. Self defense is generally considered an affirmative defense, that is, one that the Accused must produce evidence to prove. Raising affirmative defenses at this stage does not appear to be the type of assistance the Court seeks from Amici.

The Court’s frustration with Mr. Tapuskovic and Mr. Tapuskovic’s frustration with the Court’s expectations are not new. An earlier heated exchange occurred when Mr. Tapuskovic was cross examining Dr. Renaud de la Brosse, the prosecution’s propaganda expert. Rather than focus on issues the witness raised in his direct examination concerning the Accused’s use of propaganda to generate fear, hatred and war fever, the Amicus tried to establish that Serbs were the victims of a Croat and Bosniak propaganda campaign to paint them as aggressors. As examples, he cited the 1992 Sarajevo breadline massacre and the 1994 Markale Marketplace massacre, both involving significant civilian casualties, which he claimed were perpetrated by Muslims and unfairly blamed on Serb forces to gain international sympathy.

When Mr. Tapuskovic asked the witness whether it had ever been established who fired the shell on the bread queue, “whereas what followed the incident was sanctions imposed against Serbia,” Judge May stopped him, “We’ve heard this argument before. You’re suggesting that it was the Bosnians who were responsible. This witness isn’t to deal with that. He’s merely dealing with propaganda. And we’ve heard all these arguments. We hear them from the accused all the time. Now, you must consider your role as amicus and consider that you’re not putting forward a positive case on behalf of anybody. I must ask you to finish this . . . in the next ten minutes . . . .”

That precipitated the following outburst from the Amicus, “Your Honours, I will finish whenever you want me to, but I must say quite seriously that I’m constantly under time constraints, and it is very difficult for me to perform my role as amicus curiae. So I ask myself whether I am necessary to the Trial Chamber in this case at all. I cannot work under pressure of this kind. And let me say also – I have to say this although maybe it’s not the right place, but I am the oldest person here and I can’t be under stress constantly as to be given instruction when and what to ask. If I can’t raise issues of this kind, then my services serve no purpose here. It has nothing to do with Mr. Milosevic here, but it has to do with questions you will have to deliberate about and make a ruling on. If I’m superfluous here, then I no longer wish to perform this role.”

On that occasion, Judge May backed down in the face of Mr. Tapuskovic’s obvious stress. But the problem did not go away, as the cross examination of General Agotic showed. There does seem to be a fundamental difference in the way the Court and this Amicus perceive his role. In its initial Order establishing the Amicus Curiae, the Trial Chamber stated that the Amici’s role was “not to represent the accused but to assist in the proper determination of the case.” The assistance the Court requested was: 1) to make “any submissions properly open to the accused by way of preliminary or other pre-trial motion;” 2) to make “any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate;” to draw “to the attention of the Trial Chamber any exculpatory or mitigating evidence;” and 4) to act “in any other way which designated counsel considers appropriate in order to secure a fair trial.”

Mr. Tapuskovic, for his part, appears to see his role as one of assuring that the Trial Chamber understands the context in which the events of the 1990’s played out. To him, only with that knowledge are the events (and crimes) explicable. Without that context (which necessitates going back at least to WWII), criminal responsibility cannot be established, he seems to be saying. The Trial Chamber wants him to stick to strictly legal issues. Experts will be called to testify about relevant Yugoslav history and culture. An Amicus cannot give testimony, which Mr. Tapuskovic has attempted to do, e.g. stating that “it was established that this [the Markale Marketplace massacre] was really perpetrated by the Muslim side.”

Given the difference in perception of Mr. Tapuskovic’s role, the clashes and growing frustration on both parts was inevitable. Whether it led to the Court’s decision to end his services when the prosecution closes its case is uncertain, but that is what the Court did on June 27, 2003. In reply to the Amici’s request for the Court to clarify its future role, the Trial Chamber noted that legal issues may arise when the Defence presents its case and thereafter, and that Mr. Kay and his assistant, Ms. Gillian Higgins, have the “appropriate expertise and experience” to assist the Trial Chamber in such matters. As for Mr. Tapuskovic, the Trial Chamber ordered, “The appointment of Mr. Branislav Tapuskovic as amicus curiae shall end at the conclusion of the Prosecution case. The Chamber expresses its gratitude to Mr. Tapuskovic for his services.” The Court did not want the services he was able to provide. Indeed, though his sincerity is unquestioned, those services more properly belong in another forum, such as a truth commission which deals with broader cultural and political issues.

The role of the Amicus is not the only one that seems unclear to the Court. Lead Prosecutor Geoffrey Nice continues to struggle with the Trial Chamber over his efforts to present a full and adequate case against the Accused, while the Chamber seeks to assure the Accused receives a fair and expeditious trial. The latter, of course, is something the Accused has not expressed an interest in.

Using great care in approaching an increasingly irritable Court, Mr. Nice sought the Court’s assistance in limiting the time the Accused uses in cross examining 92bis witnesses, those witnesses whose evidence in chief is presented in writing because it is cumulative of other evidence or background. After more than 16 months’ experience with the Accused’s cross examination techniques, it is obvious that, with rare exceptions, he uses every minute the Court allows him whether or not it is necessary. It is also clear that much of his cross examination is irrelevant and repetitive. Every minute Milosevic uses detracts from the time the prosecution has to present its case. Given the time constraints it is under, Mr. Nice’s request for the Court’s assistance in being more vigilant with Milosevic was perfectly appropriate.

Mr. Nice approached the Court in his gentlemanly style by expressing that it is difficult for the prosecution to strongly express its views to the Court when there is no opposing counsel who can respond. Milosevic has shown little interest in, and lacks the skills to, argue points of procedural law. In his submission, the Prosecutor pointed out that in a recent 55 minutes cross examination, the first 50 minutes were “taken up by material to which the witness was unable to give a responsive answer.” Only in the last 5 minutes did the Accused ask relevant questions. With the utmost deference, Mr. Nice made his request, “I invite the Chamber to be as alert as it always is and mindful of the Accused wasting time in establishing the time for cross examination.” He ended as he began, by advising the Court that “without an articulating lawyer representing the Accused, it is sometimes difficult to put arguments as strongly as we wish.”

Judge May responded that allocating cross examination time and monitoring the Accused’s use of it is very much a matter for the Trial Chamber. “To shut the Accused up would be wrong,” he said, but continued, “Of course, we have in mind the problems of the Prosecution.”

It was the following intervention by Judge Robinson that showed the fraying nerves in this 16 month long trial that is not yet half way through. “I’m very offended by your submissions,” he told Mr. Nice. “They are an oblique criticism of the way the Court manages the case.” Stressing that it is a question of fairness that can’t be reduced to mathematical equations, Judge Robinson concluded, “I find your submission entirely unnecessary.”

Mr. Nice showed his respect for the Court and the judicial process by saying he was sorry Judge Robinson had reacted as he had, but that “I entirely and respectfully disagree.” Stating that he understood and respected the Trial Chamber’s need to be fair to the Accused, he asserted his own obligations to a proceeding that is focused on relevant issues and does not waste time.

He might also have reminded the Chamber that the prosecution has a duty to the public, including but not limited to victims and survivors, to present as complete a case as possible to support the indictment. If he does not, the Court will be forced to make its decision on less than adequate evidence. Such a decision will not render justice. Yes, the Accused’s rights must be protected, but so must the public’s. That’s what justice is all about.