Milosevic Trial – Stage Set for Radical Changes

In an exceptional turn of events this week, former Yugoslav president Slobodan Milosevic for the first time ever agreed with the Hague tribunal prosecutors on an issue concerning his case – on July 27, both sides expressed the wish for the mammoth trial to continue simultaneously on all three of his indictments, covering events in Croatia, Bosnia and Kosovo.

But the prosecutors at the same time insisted that it is Milosevic’s declining health and his refusal to engage a lawyer and not the size or the complexity of the joint indictments that’s causing continuous delays in his trial. They called the judges again to impose a lawyer on the former Yugoslav president and advised them to allow this counsel to run Milosevic’s defence as he or she sees fit.

The aforementioned were set out in a number of documents - filed this week and made public by the court - laying the grounds for the judges to introduce radical changes in the trial that seemed to be increasingly getting out of control. They are also the strongest indication yet that these far-reaching changes may be introduced very soon - even during the summer recess, which is scheduled to begin next week.

Observers agree that the judges could still ask for a few more documents before they can make their decisions – such as the official written reactions of both Milosevic and the friends of the court (amici curiae) to the prosecutor’s latest brief insisting on the introduction of a defence lawyer. But the trial chamber is under no obligation to do so and could also make the decision on the basis of the documents it already has.

The prosecutor’s submission on the role of a lawyer imposed or assigned to him is bound to infuriate Milosevic, who intended to use the defence part of his trial to personally present what he calls “the true version of events” in former Yugoslavia.

But on July 27, both prosecutors and Milosevic appeared to agree at least on one thing: on their disagreement with the proposal tabled last week by the judges that some of the three indictments he is currently tried on be severed.

Milosevic, who does not recognise the tribunal and does not engage in written correspondence with it, has not filed his disagreement personally. Instead, through his legal assistants, he informed the friends of the court, of his objections. The amici then filed a submission of their own, taking Milosevic’s objection into consideration.

Ironically, both the amici and the prosecutors seem to share at least some ideas about why such severance should not happen.

They both agree that Milosevic had already prepared his case on the basis of the three indictments being tried together and that reorganising the trial would be a time-consuming process that is likely to lead to more rather than less delays in a trial that has already been going on for two and a half years.

They both also agree that should Milosevic stand trial now only on one of the three indictments, he would have the disadvantage of judges having heard evidence against him in the other two cases as well. Both the prosecution and the amici suggest the judges would not be able to cast it from their minds. And Milosevic would not be given a chance to try to challenge it.

By severing the indictments, the amici argue, “Effectively, the accused would be denied the opportunity to confront the full thrust of the case alleged.”

But the prosecution made other points as well, significantly contesting the general belief that Milosevic trial has become unmanageable and raising the issue of whether the trial itself may be actually more important than delivering a verdict.

The judges’ opened the discussion on severing the indictments in an attempt to explore all the possibilities of having the long and complex trial finished sooner rather than later.

The Milosevic trial has been hampered in recent months by his increasingly poor health – he is suffering from bouts of high blood pressure that prevented him from working on his defence and repeatedly delayed the beginning of the trial.

Severing the indictment was one of the ways the judges were considering of easing his workload and getting at least one verdict in a not-too-distant future.

But the prosecution argued that Milosevic’s health should not be a factor in considering which indictments he should be prosecuted for.

On top of that, they argued, his poor health is largely of his own making and is a consequence of him taking on the workload of conducting his own defence.

None of these problems, they claim, should be “allowed to deflect the Chamber from delivering justice on all three indictments, to the world at large as well as to and for the victims of crimes in all three wars concerned”.

The prosecution countered the unspoken notion that the severance issue was raised due to the trial chamber’s fears that the Milosevic trial may never reach any conclusion - the accused’s health as well as the tribunal’s time and financial constraints working against it.

But the prosecutors insisted that “such an approach would… be premature and may be driven by speculation and an excessive concern for appearances, not realities”.

At the same time, they brought for the first time in the open the notion that even if there was a risk of the trial never being concluded, the very process of trying Milosevic may in fact be more important than an incomplete judgement.

“It may be more important that an accused is properly and publicly tried as far as other circumstances allow … than that some conclusion be returned in what may always be characterised as ‘rush to judgement’,” they said.

“To sever... indictments and to run the risk .. of only ever hearing part of the case to conclusion, will be to leave unexplored… whole tracts of evidence of immense significance to people living today in the former Yugoslavia.”

The prosecution and the amici disagree over which indictments should come first, should the trial chamber still decide to sever them. The amici recommended the court begin with the Kosovo indictment, since it was the first one to be confirmed by the tribunal, and covers the events in which Milosevic did have de jure and de facto control of the Yugoslav armed forces.

The prosecution, however, refrained from making any clear recommendations, but indicated they would find it more proper for the defence case to begin chronologically – which would mean with Croatia and Bosnia.

But in the prosecutor’s submission it is not the complexity of the indictments that’s causing the delays, but Milosevic’s insistence to conduct his own defence. The prosecution this week once again reiterated its view that imposing a lawyer on the former Yugoslav president was necessary for the trial to continue.

Besides Milosevic’s declining health, the prosecution had spoken of one other reason why Milosevic should be assigned a lawyer - the likelihood of him “hijacking” this trial “to serve his political purposes”.

Ever since the beginning of his case, Milosevic has conducted a highly political defence, and the indications are he would continue in this way during the defence part of the case. In his earlier appearances he announced he would try to prove that the war was actually waged by the western governments who conspired to break up Yugoslavia, rather than to answer the factual evidence about the war crimes committed by the political and military structures under his command and influence.

Milosevic refuses to recognise the Hague tribunal and doesn’t engage in any written correspondence with it. But unlike his fellow-countrymen Vojislav Seselj, who is bombarding the court with hand-written letters and claims that the laptop computer provided to him by the court would kill him, Milosevic has managed to successfully walk a tightrope between obstructing and conducting his case, while using his directly-transmitted trial as a platform for sending out political messages back home to Belgrade.

But the prosecutors have called on the judges to bring an end to these acrobatics.

“The accused has endeavoured to hijack the trial to his agenda while cleverly engaging in conduct just short of obstructive, just less than disruptive,” prosecutors state. But the bottom line, in their view, is that Milosevic “is clearly not interested in the just and fair resolution of the proceedings”.

In such a situation, the prosecutors argue, the court’s obligation to respect the basic rights of the accused - including the right to self representation - should not be done “at the expense of rendering the tribunal incapable of actually conducting the trial.”

The prosecutors went to great length to argue their position by placing the Milosevic case in the context of the developing international jurisprudence on these issues and pointing at a number of cases at the Hague tribunal, as well as other international institutions, where lawyers were imposed on indictees that refused to recognise the court and engage in obstructive behaviour.

What the prosecutors, however, failed to mention is the fact that none of those accused was as high-ranking as Milosevic, and that imposing a lawyer on a former head of state just as he is about to present his defence, would likely raise questions about the fairness of the trial and stir a fresh wave of criticism against the already heavily besieged tribunal.

But observers agree that imposing a lawyer on Milosevic could be exactly the kind of precedent to shift the balance of international jurisprudence in favour of imposing lawyer on other heads of state in similar situations – not least Iraq’s former dictator Saddam Hussein, awaiting the beginning of his trial in Baghdad.

The prosecutors advised the judges to take measures that, they conceded, may “at first glance appear Draconian”.

“The only practical solution is to impose counsel to run the defence in full,” the prosecutors said, adding this would mean leaving the defence strategy in the counsel’s rather than Milosevic’s hands – including the decisions as to what witnesses to call, what strategy to adopt etc.

They did, however, advise the judges to first give Milosevic the opportunity to chose a lawyer of his own, and suggested that his Belgrade-based legal advisers would be the best placed people for this job. Only if he refuses to appoint them, should the court impose a lawyer on him, the prosecutors argue, but even then offer him at regular intervals the chance to take an active part in the proceedings, such as to ask witnesses questions after his lawyer has finished with them.

But there’s a high chance Milosevic will not appoint a lawyer, since he has already publicly announced he would not do so. It is also unlikely he would want to cooperate in any manner with a lawyer assigned to or imposed on him by the court.

In practice this could means that his future imposed counsel could be put in an unenviable situation of representing an extremely high-profile defendant, who would most probably repeatedly denounce him, and would not advise him on which strategy, witnesses or documents to use. On top of that the counsel would in theory have to prepare this highly complex case between now and August 31, when the trial is set to begin anew.

The prosecution has also suggested that the best people to take such unenviable role would be found among the existing amici.

The three friends of the court have the job of ensuring that the defendant’s rights are respected.

The amici most familiar with the case are the Belgrade-lawyer Branislav Tapuskovic, Australian lawyer Timothy Mc McCormack and their British colleague Stephen Kay. Tapuskovic’s role ended with the conclusion of the prosecution case, but the other two are still on the case. They were recently joined by another lawyer, Gillian Higgins.

But the judges have so far moved with care, showing acute awareness of the political and legal consequences any decision would have. From their recent decisions it seemed they were thinking more in the direction of appointing a stand-by counsel, and leave the conduct of defence in large part in Milosevic’s hands. It is unclear to what extent the latest prosecution’s brief would influence their views.

Theoretically, the tribunal judges now have all the documents in their hands they asked for and could make far reaching changes in Milosevic trial in the coming days, irrespective of the court’s recess which begins next week.

Ana Uzelac is IWPR programme manager in The Hague.