ANALYSIS: Milosevic Prosecution 'Emasculated'

The judge presiding in the trial of Slobodan Milosevic has told the

prosecution to simplify their case and finish presenting evidence for all

three indictments within a year.

The April 10, 2003 deadline has been imposed to make the defence of the accused easier and help the judges in their decision.

"No prosecution case should continue for a period longer than that," said Judge Richard May, announcing the strict timetable.

Since he was assigned Milosevic's case late last June, Judge May's trial

chamber has shown unusual signs of urgency and impatience first to start - and now to finish - the "Trial of the Century", as the first ever prosecution of a former head of state before an international criminal tribunal has been dubbed.

Insisting on a rapid start, the court last autumn rejected the

prosecution's request for the cases to be joined and scheduled the

beginning of the separate trial over the Kosovo indictment for February 12, 2002.

The appeals chamber annulled this decision and ordered the joining of the indictments and a single trial for Milosevic for Kosovo, Croatia and

Bosnia-Herzegovina. It left the trial chamber to decide whether the

announced opening date would be postponed, which it did not.

Thus a trial based on indictments that include severe violations of

international humanitarian law committed in three wars over a large area and over more than a decade started at the wrong end - both in chronology and geography - in Kosovo in 1999 instead of Croatia in 1991.

This reversal of the natural order explains some of the trial's undesirable side effects in Serbia, where Milosevic has been able to play on his former voters' negative feelings towards the Kosovo Albanians and NATO.

The prosecution planned to bring 120 witnesses over the Kosovo indictment as the "bare minimum ... to prove the case" involving the deportation of 850,000 people, thousands of killings and the widespread persecution of Kosovo Albanians.

But at the start of the trial, the judges ruled 90 was "sufficient" and that the presentation of evidence over Kosovo must end in June so that the Croatia indictment can start in July.

In the meantime, three weeks were lost when Milosevic was ill and over the Easter break, which left 26 working days in two months, during which 23 witnesses were examined. Milosevic used up as much as 50 or 60 per cent of the time in the courtroom.

His opening statement was a full day longer than the prosecutor's and his cross-examinations have usually been longer than the direct examinations.

Whereas the direct examination of the prosecutor's expert witness Andreas Reidlmayer last week lasted for 55 minutes, the cross-examination lasted 150 minutes.

In the debate before last week's decision, the principal trial attorney,

Geoffrey Nice, warned the judges that fixing a time limit would "not be appropriate" as it left the prosecution "vulnerable" to long

cross-examinations whose sole purpose will be to use up the

allotted time and prevent the presentation of evidence.

The judges did not accept this and pledged to ensure Milosevic's

cross-examinations remained "within reasonable limits". They had little

success in the first two months, even though the cross-examinations often evolved into political speeches.

Moreover, the judges accepted the argument of the amici curiae (friends of the court) that the accused needed "more freedom" in cross-examination to ask about the activities of the Kosovo Liberation Army, KLA, and NATO air strikes against Serbia, "because both are relevant as a potential defence". Milosevic, naturally, has made extensive use of this.

The judges justified setting a strict time limit on the prosecution on

grounds of "justice and fairness ". The accused "must be in position to

defend himself", Judge may said. "The longer the prosecution case goes

on... the more difficult it is for the accused to do so."

The objective is not only to make defence easier for the accused but to make it easier for the judges to make a decision. At the end of the trial, Judge May said, "the trial chamber has to give a judgment, and the longer the trial goes on... the more difficult it is."

This suggests the (undesirably large) volume of the prosecutor's evidence and number of witnesses has determined the scope of the case, not what Milosevic did in the former Yugoslavia over the last decade, which the indictments define as genocide in Bosnia and crimes against humanity in Croatia and Kosovo.

The first president of the tribunal, Antonio Cassese, insisted that one of the tribunals' most important functions was to make "the voice of the

victims" heard. Over the last few years, the courtrooms have heard those voices.

They have heard the women of Srebrenica, eastern Bosnia, who lost husbands, children, brothers and other male family members in July 1995. The have heard the voices of victims taken out and lined up to be shot who survived by chance.

They have heard the captives from the camps at Omarska, Keraterm, Celebici and Kaonik, the women and girls raped in Foca and the people of Sarajevo who were crippled by artillery and sniper fire.

By placing time limits on the presentation of the prosecution case, the

judges will give the victims in the courtroom in which Milosevic speaks

less time to be heard - or no time at all. It will especially effect the

ability of the prosecutor to bring so-called "crime basis witnesses" to

court - victims with first-hand testimonies of their or their families'

sufferings.

On the basis of the figure of 90 witnesses they were allowed to produce,

the prosecution has calculated that one in every 10,000 Kosovo victims (out of a total of 850,000 deportees) had a chance to tell the court their

story. Now the ratio will worsen, simply to make it easier for the accused to defend himself and the judges to make a decision.

Before the limits were imposed, the prosecution planned to call 126 "crime basis witnesses" for the Croatia indictment, to testify over 20 locations of mass killings, 17 detention centres, three cases of deportations and the destruction of Vukovar and Dubrovnik.

Their testimony has special significance because, with exception of Slavko Dokmanovic's trial over the massacre in Vukovar, (where there was no decision because he committed suicide) the tribunal has conducted no trials for the crimes committed in Croatia in 1991.

Now the question is how many Croat victims can be squeezed in to the tiny time slot determined by the judges.

Finally, to present the indictment for genocide in Bosnia, which

encompasses events in 47 municipalities over four years, the prosecution

identified 566 witnesses, of whom it planned to produce one-fifth. It will

be hard, now, to fit even these 120-130 into the judges' time-table.

As well as allowing the victims the chance to make their voices heard, the tribunal serves to establish historic facts through the rigorous

presentation of evidence, and to uncover the truth and prevent revisionist interpretations of events.

The trial of Milosevic, a former head of state held responsible for the

worst violations of international humanitarian law committed in three wars, over a broad area and over a long period of time, is a unique opportunity to establish a complete picture of events during the last

decade in the former Yugoslavia and who is to blame for them.

As Geoffrey Nice reminded the judges, quoting the Nuremberg chief

prosecutor Robert Jackson, it is a chance to "establish incredible events

with credible evidence".

This will now be more difficult to achieve, because, as Nice warned,

"any highly selective choice of witnesses may not be truly and fully

representative of events generally". Abridgement of the trial "by

emasculating the body of evidence that should otherwise be placed before the chamber" will, Nice said, "deprive the chamber of valuable material required for the purposes of establishing the truth."

This week the prosecution is expected to decide on whether to appeal

against this "emasculation of the prosecution case" by the trial chamber.

Mirko Klarin is IWPR senior editor at the war crimes tribunal and editor-in-chief of SENSE News Agency.