ANALYSIS: Tribunal Hands Milosevic Opportunity to Prolong Trial

A war crimes tribunal ruling designed to speed up trials may present the prosecution in the Milosevic case with unintended problems.

The ruling - in form of an amendment to a tribunal law made in 2000 and confirmed in the Milosevic case - was originally intended to reduce the length of trials in the interests of justice. It allowed written evidence, rather than purely oral testimony, to be presented in court. But instead of ensuring a speedy trial - as stipulated in Tribunal Article 20(1) and the US constitution and the European Convention on Human Rights - the ruling in the Milosevic case may not actually save time as expected.

The problem with the acceptance of written evidence is that it conflicts with the principles of Anglo-Saxon jurisprudence, which dominates the legal fabric of the International Criminal Tribunal for the former Yugoslavia, ICTY.

The Anglo-Saxon system considers oral presentation most advantageous, as judges and parties can observe witness's physical reactions to cross-examination. It seeks to cope with trial length through plea-bargaining and plea agreements, rather than resorting to written testimonies. The latter has also been criticised by the European Human Rights Court.

The amendment to the Rule 92bis of the tribunal's Rules of Procedure and Evidence in 2000 aimed only to permit written testimonies when they did not bear on the "acts and conduct" of the accused. So one saying that a defendant had been seen committing murder would not be admissible.

Written evidence may only be "cumulative", in support of oral evidence.

For example, if a witness told the court he had seen people fleeing from a village, a villager who actually experienced the flight could submit his testimony in a written form.

The decision to admit written statements has raised the question of whether the accused then has the right to cross-examine this witness.

The ruling decided that cross-examination would be allowed when the evidence in the written testimony was a "critical element of the prosecution's case", or a "live and important issue between parties, as opposed to a peripheral or marginally relevant issue".

In the Milosevic case, the prosecution has so far asked for 23 written statements to be admitted in support of 11 "live" witnesses. The former mainly described Serb attacks on Kosovo municipalities and does not deal with the defendant's conduct - which, therefore, renders it admissible according to the amendment.

But trial chambers have to decide on each individual case. And in Milosevic's, they ruled on March 21 that all the prosecution's written statements are crucial - and that he has the right to cross-examine the witnesses that produced them.

Milosevic originally demanded that all 1,300 witnesses who gave the prosecution statements should show up in court, even though the prosecution only intended to use a several hundred of them. "All the witnesses must come and then I shall hand you 130,000 witness statements about terrorists and NATO," he said.

Although evidence about crimes committed by Milosevic' co-accused is not considered pertinent to his own "acts and conduct" - and will most likely be admitted in written form - Milosevic will seek to challenge this.

If the court accepts that such written testimony forms an important plank of the prosecution case, (or that the credibility of the witnesses is an issue), it will probably let him cross-examine these witnesses too.

Milosevic claims that the KLA and NATO, not the Serbs, were responsible for crimes in Kosovo. Therefore all the testimonies may well be considered "crucial elements" in the prosecution case.

In future hearings, Milosevic is expected to conduct lengthy cross-examinations of prosecution witnesses who have told of deportations, killing and related crimes, attacking their credibility and asking about damage done by NATO and Albanian KLA guerrillas.

Milosevic will, as before, distort written evidence as he thinks fit. After taking up half the court's time already with his histrionics, experts believe that after the recent ruling he will dominate proceedings even more.

The trial chamber could limit his cross-examination, but because Milosevic is acting in his own defence he will enjoy the latitude normally allowed to defendants lacking professional counsel.

The prosecution could land in a legal minefield, therefore. They have no way of knowing which live witness statements the chamber will accept as evidence. And with Milosevic attacking the credibility of each prosecution witness, it will be difficult to label any written testimonies as "cumulative".

The trial chamber has further disadvantaged the prosecution by ruling that they have a year from April 10 to finish presenting charges on Bosnia Croatia and Kosovo, though the prosecution may appeal against this.

The prosecution and the judges seem caught in a dilemma. Fairness demands a speedy trial. But in this case, the accused wants to spin out the proceedings for as long as possible. The question is whether the trial chamber will be as rigorous in curtailing the time allotted to Milosevic, when he presents his case next year.

Heikelina Verrijn Stuart is a lawyer, journalist and commentator covering the war crimes tribunal in The Hague.