ANALYSIS: Wrangling Over Milosevic Trial Continues

The judges in Trial Chamber III, Richard May, Patrick Robinson and O-Gon Kwon, appear to be in a great hurry to start - and conclude - the trial of Slobodan Milosevic.

The former Yugoslav president is set to be tried for crimes in Kosovo and then for crimes in Croatia and Bosnia. Judges last week began preparations for the first trial scheduled for February 12.

They had earlier rejected prosecution demands for all of Milosevic's alleged crimes in former Yugoslavia to be tried together.

Their hurry to complete the Kosovo case was evident from their move at a pre-trial conference last week to cut the prosecution's list of 110 proposed witnesses to 90 and demand that it halve its 123 planned affidavits and 1,400 documents and other exhibits.

The haste was also evident from requests that the prosecution finish presenting its case before the tribunal's summer recess in early August.The judges justified these limits on the grounds of the "size and complexity" of the case.

In spite of the judges' haste, it is not certain Milosevic's trial will begin on schedule, its duration nor whether he will face more than one trial. There's also the question of his unpredictable behaviour.

On the same day that limits were set on prosecution lawyers in the Kosovo trial, they were given the go-ahead by the Appeals Chamber (comprising Judges Claude Jorda, David Hunt and Fausto Pocar) to challenge Trial Chamber III's refusal to join the Kosovo indictment with those for Bosnia and Croatia.

The prosecution's appeal against the decision, filed December 20, asserted that Trial Chamber III "abused its discretion" when it turned down its joinder motion.

The chamber had justified its decision, arguing that a nexus between the Kosovo crimes and the Croat/Bosnia crimes was "too nebulous" to constitute "a common scheme, strategy or plan", which the tribunal rules set as a condition for joinder.

The prosecution's appeal focused on the judges' conclusion that as Yugoslav president Milosevic acted directly in Kosovo and did so indirectly in Croatia and Bosnia while Serbian president.

It claims that in both Kosovo, Croatia and Bosnia - irrespective of his official post - Milosevic was "doing the exact same things". The prosecution asserts that "rendering justice" requires the trial chamber to "look beyond these smokescreens, behind which criminals frequently seek refuge".

In granting the prosecution leave to challenge the trial chamber decision, appeals judges merely concluded that the rules of procedure dealing with a joinder need "clarification".

The appeals chamber says its ruling on whether Milosevic should be tried once, twice or even three times will not hold up the Kosovo trial.

The trial chamber remains free to decide to start the Kosovo trial on time and then continue or interrupt it depending on the outcome of the prosecution's appeal.

What the appeals chamber will rule and what the trial chamber will decide are uncertain at this point. Even less predictable is how Milosevic will behave before the court, on which the course and the duration of the trial greatly depends, irrespective of the time frame and other limits that the trial chamber wants to set.

Presenting the format of the Kosovo trial, Judge Richard May listed in detail at last week's pre-trial conference all its stages, and especially those in which the accused might take part.

The defendant will be able to make a statement immediately after the prosecution's opening statement. Milosevic will probably use that right to define what according to him is the subject of the trial.

The defendant will have the right to cross-examine prosecution witnesses. But he is unlikely to show much interest in the victims who appear as witnesses, except to point out their "terrorist" roots or connections.

He will not miss an opportunity to try to discredit two categories of prosecution witnesses: so-called political witnesses (especially foreign representatives who negotiated with him at the time of the events in the indictment) and insiders, former political and military chiefs in Serbia and Yugoslavia, who have offered their services to the prosecution.

The prosecution claims there are 25 to 30 such witnesses, with first hand knowledge about the role and actions of the defendant in the events with which the indictments deal.

After the end of the prosecution's case, Milosevic will have the right to file a motion for acquittal. Judge May pointed out last week that the trial chamber "must acquit the accused...if there is insufficient evidence to sustain a conviction".

If he is not acquitted, Milosevic may present his defence case - alone or with the aid of a team of defence counsels which he is preparing, just in case.

He may make an opening statement, call witnesses and present evidence. He may also appear as a witness in his own defence, though he then risks cross-examination by the prosecution.

Milosevic undoubtedly wants to use the trial for Kosovo - if it remains separate - to draw attention to NATO's 1999 air strikes against Yugoslavia.

He sees himself as having the role of prosecutor in a trial of former US president Bill Clinton and other members of NATO member-states for a "joint criminal enterprise" against Yugoslavia and Serbia.

This will require the expert help of Western lawyers who share his anti-Western and anti-globalisation views and who have already offered their services. They include Ramsey Clark, Christopher Black and Jacques Verges.

It remains to be seen how Milosevic will manage such a U-turn, without this being interpreted as his "recognition" of the court, which he is loathe to do.

It is precisely because of this that Milosevic last week declined to read out an alleged list of 35 witnesses he intends to call to the Kosovo trial.

They will not, of course, be invited to defend him, but to appear in court so that he can accuse them of a participating in a "joint criminal enterprise" against Serbia and Yugoslavia.

Although Judge May inquired which witnesses he intended to invite, the accused chose not to say, leaving his Belgrade lawyers to disclose some names after the pre-trial conference.

Besides Clinton, Zdenko Tomanovic disclosed that the list includes Madeleine Albright, Tony Blair, Robin Cook, Javier Solana and Wesley Clark. The rest are leaders of leading NATO member states from the time of the air strikes against Yugoslavia.

Milosevic not only has to present this list without seeming to "recognise" the court, he also has to persuade the judges that their testimonies would be relevant.

Judge May last week said the trial chamber would help the accused summon witnesses "on condition that they are relevant". At the same time, addressing the troika of amici curiae (friends of the court), he pointed to the need to consider the "possible significance of the NATO campaign in Kosovo...if it is relevant for the case being heard".

At least one of the three amici, the Belgrade lawyer Branislav

Tapuskovic, obviously thinks it is relevant. He objected that the "time frame included in the indictment... was much too short since what took place in Kosovo in 1999 has roots in a distant past".

In spite of the judges' request for a cap on history lessons, Milosevic's trial, or trials, like so many tribunal cases, is likely to be transported back to the Middle Ages at the very least, if not to the migration of the Southern Slavs to the Balkans in the 7th century, to establish whether Serbs or Albanians settled Kosovo first.

It will be hard to fit all this into the tight time frame set by the judges last week.

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