Trial Chamber Gives Prosecutor Additional Time

Lead Prosecutor Geoffrey Nice has spent an inordinate amount of his time on the Milosevic case trying to fit the evidence required to prove guilt beyond a reasonable doubt on 66 charges into the time allotted by the Court to do so. At times, it must seem a little like trying to push an elephant into a mouse hole. Proving Milosevic's culpability for 66 counts of war crimes, crimes against humanity and genocide occurring over a wide geographic area and a decade of time and involving hundreds of incidents is a daunting task, even when you can narrow the issues and facts in dispute by agreement with the other side. In the Milosevic case, the Accused has agreed to nothing, including the Tribunal's legitimacy.

The burden on the Trial Chamber is also greater in the case of an obstructionist self-represented Accused. The Chamber is responsible for overall management of the trial -- for assuring its fairness to the Accused and the prosecutor who represents the public interest. Expeditiousness is an element of fairness, but so is having an opportunity to present a full and complete case.

Over the past 15 months, both the Prosecutor and the Chamber have struggled with these issues, often significantly at odds. Milosevic, for his part, says it doesn't matter to him. He complains that time is all the Court and Prosecutor are concerned with. He should be so lucky.

Ruling on the latest request for additional time, the Trial Chamber today granted the Prosecution 100 additional days from the last deadline of May 16, 2003 to present its evidence. Absent lengthy adjournments, the Prosecution's case should come to a close before the end of the year. While this may be as much as two months' less than the Prosecution wanted, it is 46 days longer than the Court initially allowed. Fifty-four of the additional days are make-up days for lost time due to Milosevic's repeated illnesses.

In reaching its decision, the Trial Chamber balanced the interests involved. Considering that it would not be in the interests of justice to so limit the Prosecution that it could not fully present its core case, the Chamber granted it additional days. However, it declined to grant the Prosecution all they'd requested because its case 'would become excessively long and oppressive to all concerned.'

In his recent oral argument, Mr. Nice informed the Chamber that 118 witnesses remained who would give live evidence. He estimated they would take about 119 days. That's not far from what the Chamber granted. However, the problem for Mr. Nice is proving the extensive crime base, which he intended to do through 32 additional witnesses under the Rule 92 bis (A) procedure, bringing the total to 150 witnesses. Rule 92 bis (A) allows a sworn witness statement to be substituted for live testimony, where the witness's evidence is cumulative of evidence already given live in court, and where it isn't about the acts or conduct of the Accused. For the most part, the Court has required that the Accused be allowed to cross examine 92 bis (A) witnesses if he so chooses -- and he has in all cases, reducing considerably the time the Prosecution hoped to save.

At least some of the problem in proving the crime base may be solved when new insiders come forward to testimony. Two of the accused in the second Srebrenica trial who recently pled guilty are prime candidates to testify in the Milosevic case, which should considerably ease the Prosecution's burden of establishing the Srebrenica massacre. As more insiders come forward, the Prosecution can substitute them for a number of other witnesses as it did when Milan Babic testified (the prosecution traded an additional day of his testimony for 14 witnesses).

In addition, the Trial Chamber has granted the Prosecution leave to appeal two other decisions which, if reversed, will save significant time in the case, while allowing a fuller presentation of evidence. One involves the Trial Chamber's refusal to take judicial notice of facts that have been decided (adjudicated facts) in other cases. While taking notice of some, the Chamber rejected more than half the facts the Prosecution sought to have it recognize. Like 92 bis (A) evidence, adjudicated facts are generally used to prove the crime base where they don't involve the acts or conduct of the Accused. The procedure also seeks to spare witnesses from repeating their testimony in trial after trial. It is allowed under Rule 92 bis (D).

In the other decision the Trial Chamber denied the Prosecution's request to present all the evidence in chief of its witnesses in writing. The witness would appear in court to attest to the truth of his or her statement and the Accused would be allowed to cross examine. Intended as a time saver, the Prosecutor acknowledged that its case in chief would suffer a loss of vitality if live evidence were essentially eliminated. The Trial Chamber rejected the request, stating ICTY rules do not permit it. While deciding a case on written submissions is a common practice in continental law systems, it is generally used for civil not criminal cases. If an Appeals Panel allows it, time will certainly be saved but it will eliminate the public nature of the trial.

Decisions by the Appeals Chamber on these issues are pending.

In the meantime, the Prosecution will reassess its case following the additional grant of time. While it has been at trial for 15 months (188 court days), the largest part of its case is yet to be presented -- crimes in Bosnia, including Srebrenica and Sarajevo. Any short cut on these will surely prove a great disappointment to the victims, though the crimes are established in other cases. Milosevic should be made to answer for the alleged consequences of his policies and his lust for power. He should be made to listen to the anguish of the survivors and victims -- and they should be given the chance to confront him with what he has wrought. One hopes that the Trial Chamber's compromise decision will allow for that. If it does, the Chamber will have done its duty to assure a fair and expeditious trial for the Accused and the Prosecution which represents the not inconsiderable public interest.