Analysis: Milosevic Trial Faces Long Haul

The leading prosecutor in the Milosevic case, Geoffrey Nice, told judges last week that he was trying to find ways of cutting the length of the trial, with some estimates saying it could last five years.

The case is monumental in scope and complexity – the more so because the accused insists on representing himself.

With 66 counts to be proved, presiding judge Richard May has imposed a tight timeline on the prosecution.

Its entire case was to be completed by May 26 - but approximately 30 court days were lost due to Milosevic's health.

Even with 30 days added, however, Nice advised the court it was all but impossible to meet the deadline.

The case against Milosevic is really three cases joined into one: Kosovo, Croatia and Bosnia-Herzegovina.

While the prosecution met the court's deadline for the Kosovo case, a number of witnesses remain to be heard, which may require an additional 13 to 20 days.

Nice said ten more court days remain in the Croatia case, but the prosecution has evidence that will take another 22.

If the court allows Milosevic to cross-examine witnesses testifying about crimes, rather than limiting their evidence to written statements, an additional 16 to 17 days may be required.

The remaining Kosovo and Croatia cases are estimated to take three-quarters of the time left to the prosecution. This does not leave much time for the biggest part of the trial - Bosnia-Herzegovina.

Nice distinguished between what he called essential witnesses, who he called priority 1 and less essential ones priority 2.

The former are essential for a bare bones case. The latter provide a more complete view of what happened.

In the Bosnia case, priority 1 witnesses alone are estimated to take 80 days.

An additional 41 days will be needed for charges related to crimes alleged at Srebrenica and Sarajevo.

Including priority 2 witnesses adds 33 more days.

If Milosevic gets to cross- examine many witnesses, as he has so far, another 32 days could be required.

Add to that any witnesses the court itself wants to call and the prosecution's Bosnia case amounts to about 188 court days.

In the first year of the trial, the court held fewer than 150 sessions.

Without some additional reduction in the prosecution's case, it could therefore last more than 18 more months.

Then, Milosevic will likely have equal time to present his case. Potentially, then, this could mean a five-year trial.

It is extremely unlikely Judge May would find that compatible with his duty to expedite the proceedings.

Nice advised the court that the best way to deal with a case of this complexity is

a method used in civil law, particularly in complex trials in the United Kingdom and the United States.

There, key evidence is submitted in writing, followed by limited cross-examination, with judges then questioning both sides. This method can often save a lot of time.

Nice said that if the court could not agree to this method, there may be other ways of cutting the time needed.

He said the prosecution has "proposed a range of methods for saving time. It seems none have as yet found favour with the court”.

One prosecution suggestion is for the judges to agree to some more written evidence, without allowing Milosevic to cross-examine the witnesses.

This would be undertaken when the matters the prosecution want to prove are "matters other than the acts and conduct of the accused as charged in the indictment".

This device, called Rule 92bis, has been used for witnesses who give evidence proving crimes, rather than offering to link Milosevic to these crimes.

It is used for instances where he is not accused of directly committing them.

While the court has the authority to receive such evidence in written form, it has instead allowed Milosevic to cross-examine each 92bis witness - usually for an hour.

If the judges end Milosevic’s right to cross-examine 92bis witnesses, they could save almost 50 days.

The prosecutor has also asked the court to admit parts of witness evidence given in other trials at The Hague, rather than asking the witnesses to come and give the testimony all over again.

But an objection has come from the amici curiae, three court-appointed lawyers employed to ensure Milosevic has a fair trial.

The amici pointed out that this procedure interferes with Milosevic’s right to cross-examine witnesses. Though the latter were cross-examined in prior trials, the accused in those cases may not have asked the same questions Milosevic would want to ask.

The court has not ruled on this application.

Nice suggested the court should "involve itself in deciding which witnesses it wants to hear".

This would mean the prosecution surrendering some of its power to run its own case, but it seems to be a sacrifice it is willing to pay in the interests of time.

But the problem remains: how to cut the time needed without neglecting the need to provide a solid body of evidence.

Cutting the time may mean that there is not enough evidence for the prosecutor to persuade the public of Milosevic’s role in the Balkan wars. And this, in turn, may leave victims of war crimes feeling key questions have not been answered.

Already, deep cuts have been made: the Bosnia case has been reduced from evidence dealing with atrocities in 47 municipalities to just 11 - including Srebrenica and Sarajevo.

Nice denied an accusation from Milosevic that in asking the judges to decide which witnesses were most important, he was hoping they would help him prove his case.

The prosecution has yet to formally ask for a time extension.

Further argument from the amici curiae and Milosevic can be expected before the court rules on any of the prosecution's applications.

Judith Armatta reports on the tribunal for the Coalition for International Justice, www.cij.org.