ANALYSIS: Milosevic Wants it Both Ways

Before the start of his trial on February 12, Slobodan Milosevic was reported to have whiled away the hours in his cell listening to the old Frank Sinatra hit "My Way" on his CD player.

In the courtroom, though, Milosevic will try to have it both ways, just as he has been trying to do since he first appeared before tribunal judges on July 3 last year, and much as he did when he ruled Yugoslavia.

Milosevic's way was to wage war and claim he was "fighting for peace". It was to draft young Serbs into the armed forces and point out with pride that "Serbia is not at war". It was to make a deal on the division of Bosnia with Croatia in the interest of the "preservation of Yugoslavia". And it was to arm and equip the Bosnian Serb army and pay its officers, and then claim he deserved the "credit for peace in Bosnia, and not war".

The prosecution must prove beyond reasonable doubt that Milosevic's way in Croatia, Bosnia and Kosovo from 1991 to 1999 - the years covered in the indictments against him - was part of a "scheme, strategy or plan," and not just a symptom of a split personality, which would raise questions over his accountability.

While the presumption of innocence is reserved for the accused, it must be assumed that the prosecution knows what it is doing and possesses the evidence to back up its claims. This will be tested soon enough, when the

prosecution starts presenting it.

Until then, observers can only speculate about the quality, reliability and credibility of the witnesses and other evidence that the prosecution has at

its disposal.

Milosevic's past behaviour before the tribunal and the latest statements of his lawyers, legal advisers and other admirers gathered in the International Committee to Defend Slobodan Milosevic, ICDSM, provide strong indications of his likely defence strategy.

Although Milosevic considers the tribunal illegitimate, his courtroom remarks to date, especially his half-hour tirade before the Appeals Chamber (see Tribunal Update No. 252), do constitute a defence.

In fact, it is a very consistent one. Milosevic is defending himself by

accusing others, namely "the [foreign] powers that dismembered Yugoslavia", NATO, Croatia's late president Franjo Tudjman, Albanian terrorists and the narco-mafia.

Bosnian Croats accused of crimes in central Bosnia defended themselves in a similar fashion, by accusing Muslims of massacring Croatian civilians.

Equally, General Krstic, charged (and sentenced) over the genocide in Srebrenica, defended himself by accusing General Ratko Mladic and his security officers of ordering and carrying out the deportation of 30,000 women and children and the execution of over 7,000 men.

The announcement by Milosevic's Belgrade lawyer, Zdenko Tomanovic, that after the prosecutor's opening statement, Milosevic will "address the world and tell the truth" suggests he will not miss the chance at the start of the trial to define what he believes is the subject under dispute.

Tomanovic said Milosevic's address to the world would "take at least a day", and will explain everything that took place in the Balkans in the past decade. International statesmen, who Milosevic says played a role in the events contained in his indictments, will also be mentioned.

Tomanovic listed some of the big names Milosevic will "call" before the court. They include former US president Bill Clinton, British prime minister Tony Blair, and French president Jacques Chirac.

Milosevic's apparent strategy is to accuse the leaders of NATO member states of participation in the "joint criminal enterprise" against Serbia and Yugoslavia - mirroring the indictments issued against him.

Milosevic's problem, as has been described in a previous Tribunal Update, is how to request the judges to summon those world leaders as witnesses without recognising the court.

The solution, of course, is to have it both ways. Milosevic's lawyers and legal advisors claim that if the defendant "mentions some world leaders as possible witnesses... the court will have to call them to testify". Or his three amici curiae - friends of the court - will summon them.

Such a defence strategy is consistent with Milosevic's way of having it both ways - setting out his case in the courtroom without formally recognising it.

Milosevic has refused to name his defence counsels. He does not accept two tribunal-approved legal advisers, American lawyer Ramsey Clark and British barrister John Livingston. Nor does he wish to select two other advisers, which he has the right to under tribunal rules.

More than a dozen Yugoslav, American, British, Dutch, French and Russian lawyers have visited him to offer their services.

He wants to have it both ways, or rather a dozen ways; to meet and discuss with whoever he wishes to without supervision. And the lawyers who visited him in detention have made the same demands, which suggests Milosevic's way is catching.

There is a system in all of this. Milosevic, who once studied law, knows he is not being asked to recognise the court but to defend himself from accusations as best as he can. He is convinced he is doing precisely that.

If he were to name defence counsels, they would speak in his name, which he could not bear since he his convinced he is best at making speeches. He would have to keep quiet, and if he wished to speak would have to take an oath, or - even worse - answer the prosecutor's questions in cross-examination.

This way, he can speak about what he thinks is in his favour to his heart's content without having to answer "provocative" questions from the prosecutor.

As a lawyer, Milosevic may well know the proverb that the accused who defends himself "has a fool for a client". If he does, he clearly thinks it does not apply to him.

It's a step he might regret. The prosecution cannot wait for the defendant to start talking, even though they will not be able to cross-examine him and regardless of the fact that in the pre-trial conference they requested the judges to warn Milosevic that everything he says before the court may be used against him.

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