Backgrounders

Q & A: Milosevic Trial (ICTY)

1. Where do the proceedings in the Milosevic trial stand?  
Former Serbian President Slobodan Milosevic was indicted under three separate indictments for crimes committed in Kosovo, Croatia, and Bosnia and Herzegovina. The trial started on February 12, 2002, with the case regarding Kosovo; the indictments regarding Croatia and Bosnia were tried immediately thereafter. The prosecution finished presenting its case against Milosevic in February 2004, and Milosevic’s defense is scheduled to commence on August 31, 2004.  

2. Why has the trial taken so long?  
The trial has been long for two main reasons. First, the crimes are very extensive, spanning three countries and eight years, and grave, including genocide, crimes against humanity, and war crimes. Second, during the past two and half years, the trial has been delayed numerous times due to Milosevic’s ill health, which caused no fewer than 66 scheduled trial days to be postponed and slowed trial hearings to three days per week. Aggravating the impact of Milosevic’s health problems has been Milosevic’s decision to represent himself. The court had to allow him extra time to prepare his own defense, and then had to postpone the start of the defense due to health concerns.  
 
3. Does the long duration of the trial violate Milosevic’s rights, and does it make the trial a “failure”?  
Milosevic was first indicted in 1999, and came to the ICTY’s custody in 2001. According to the jurisprudence of the European Court of Human Rights, even a period of seven years after the issuance of an indictment without any determination of the charges having been made can be considered “reasonable” and not in violation of a defendant’s rights. Each case has to be examined on its own merits, taking into consideration the complexity of the case and the conduct of both the judicial authorities and the accused. The Milosevic trial is exceptionally complex; the prosecutor and the trial chamber have taken reasonable measures for the trial to unfold expeditiously; and Milosevic’s decision to represent himself has made the trial significantly longer than otherwise would have been the case.  
 
A “failure” or “success” of a trial is measured not by its speed but by the extent to which prosecutors, judges, and defense lawyers act independently and uphold professional standards, and to which the rights of the accused are respected. In all these respects, the Milosevic trial has progressed normally.  
 
Some observers have argued that because Milosevic was responsible for the tragic political developments in the region, it would be easy to convict him in a criminal trial. However, there is an important difference between political responsibility in the realm of public opinion and criminal responsibility in a court of law. Unlike sweeping judgments routinely made in political debates and commentaries, establishing guilt in a criminal trial requires a thorough assessment of the evidence and a high standard of proof.  
 
The numerous counts of crimes against humanity and war crimes, as well as the two genocide counts, have also added to the length of the trial.  
 
4. Why was Milosevic allowed to represent himself in the courtroom, and would it be right for the court to appoint counsel even if Milosevic objected?  
The ICTY allows for the accused to represent himself. But, it may appoint legal counsel if Milosevic is no longer able to represent himself, or when self-representation interferes with the interests of justice (due to the seriousness of the charges) or the court’s primary responsibility to ensure the right to a fair and expeditious trial.  
 
The ICTY has already held proceedings where counsel was appointed against the wishes of the accused. In Prosecutor v. Seselj, the court appointed a stand-by counsel to Vojislav Seselj, who was allowed to represent himself. When his behavior became obstructionist, the stand-by counsel could intervene. In an April 2003 decision, the trial chamber left open the possibility of appointing counsel to Milosevic, stating it would do so “where it is in the interests of justice” and that it would “keep the position under review.”  
 
5. What are the charges on which Milosevic has been indicted?  
Milosevic is charged with 66 counts of genocide, crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws and customs of war. The crimes are alleged to have occurred in Croatia, Bosnia, and Kosovo, between 1991 and 1999, including the atrocities in Vukovar and Srebrenica, and affected hundreds of thousands of persons. Milosevic is accused of crimes such as widespread killing, detention of civilians, torture, and extermination of detainees through starvation, providing contaminated water, requiring forced labor, providing inadequate medical care, and constant physical and psychological assault. Other charges include deportation or forcible transfer of civilians, and destruction of their homes, as well as cultural and historical institutions and monuments.  
 
For all counts he is accused under command responsibility and for planning, instigating, ordering, aiding and abetting the crimes, and/or being a co-perpetrator in a joint criminal enterprise. (For more information, see http://www.un.org/icty/cases/indictindex-e.htm)  
 
6. To prove Milosevic’s guilt, does the prosecution need to prove that he ordered the commission of crimes?  
Some observers wrongly believe that the prosecutor has to prove that Milosevic ordered crimes to be committed. They argue that the prosecution performed poorly because it did not provide evidence of such orders. In reality, under the doctrines of “joint criminal enterprise” and “command responsibility” – well-established concepts in international criminal law – the accused may be held criminally responsible even if he did not issue orders.  
 
7.What does the prosecutor have to prove under the doctrines of “joint criminal enterprise” and “command responsibility”?  
Milosevic is accused of having participated in a joint criminal enterprise aimed at forcibly removing non-Serbs from territories in Croatia, Bosnia, and Kosovo. If the prosecutor can prove that Milosevic planned or prepared “ethnic cleansing,” or only instigated or aided and abetted those who committed it, Milosevic is criminally responsible for forcible transfers of civilians. With regard to killings, property destruction, imprisonment, torture, and other crimes accompanying the forcible transfers of non-Serbs, Milosevic can be held criminally responsible for those crimes, even if he did not agree to their commission, provided that the crimes were a natural and predictable consequence of the “ethnic cleansing.”  
 
Under the doctrine of command responsibility, an accused is criminally responsible if he held an effective command position, knew or had reason to know that his subordinates were about to commit crimes or had done so, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.  
 
8. What is scheduled to occur when the trial resumes?  
The Trial Chamber assigned 150 trial days for Milosevic’s defense. Milosevic has stated that he intends to call 1,631 witnesses during the presentation of his defense, although it is far from clear that most of these witnesses will actually testify. Due to the large number of witnesses, possibly shortened trial weeks, and other anticipated delays due to concerns over Milosevic’s health, the trial is unlikely to be completed before the end of 2005.  
 
9. Does Milosevic have the right to call as witnesses British Prime Minister Tony Blair, former U.S. President Bill Clinton, or other former or incumbent heads of state?  
The trial chamber, according to the decisions of the ICTY, may call heads of state to testify, but not with regard to information that they obtained solely in their official capacity and only if the testimony would be relevant to facts at issue in the proceeding. They could refuse to testify about information received in an official capacity, citing functional immunity that accrues to a representative of a sovereign state. Milosevic has placed both Blair and Clinton on his witness list.  
 
10. What kind of testimony would be irrelevant?  
Milosevic has openly expressed his intent to use the courtroom at the ICTY as a platform from which to express his views more broadly about what occurred during the armed conflict in the former Yugoslavia. Milosevic might seek to introduce evidence that bears only a slim connection to the criminal charges against him, such as injustices against the Serb people throughout the 20th century, including war crimes committed against the Serbs during the wars of the 1990s. If, for example, the testimony and other evidence are aimed solely at proving an alleged anti-Serb bias on the part of the international community and non-Serb politicians in the former Yugoslavia, the trial chamber might conclude that the evidence does not relate to the charges facing Milosevic, and is therefore not relevant. The trial chamber would not violate Milosevic’s right to a fair trial if it prevented him from introducing evidence properly determined to be irrelevant.  
 
11. Was Milosevic successful in his bid to have genocide dismissed from the case against him?  
Milosevic was not successful in his bid to dismiss the counts related to genocide in Bosnia from the case against him. On March 3, 2004, an amici curie (“friends of the court”) motion for acquittal was filed on behalf of Milosevic. The trial chamber dismissed the motion with regard to the counts relating to genocide and held that there could be sufficient evidence that genocide was committed and that Milosevic was linked to it.  
 
12. Has the trial increased Milosevic’s standing in Serbia?  
The trial has not increased Milosevic’s popularity in Serbia. Milosevic’s Socialist Party has almost dissolved since his transfer to The Hague. In the last parliamentary election in December 2003, the party received only 7.6 percent of the vote. Opinion polls show that Milosevic is the most unpopular political figure in Serbia, contrary to those who maintain that Milosevic’s trial has increased his popularity. The government in Serbia has encouraged this belief, as part of its effort to turn public opinion abroad and at home against the ICTY and thus justify its poor cooperation with the tribunal.  
 
Ultra-nationalist and authoritarian ideas continue to appeal to many Serb voters. Many of those who supported Milosevic’s Socialist Party now back the Serbian Radical Party, whose leader, Vojislav Seselj, is awaiting trial in The Hague. The party’s candidate won 45.4 percent of the vote in the second round of the presidential elections, in June 2004.  
 
There is little indication that Milosevic’s trial is to blame for the popularity of Seselj’s party. Radical nationalism in Serbia can largely be attributed to political and social developments in Serbia, including in the province of Kosovo. Particularly relevant are: (i) the unwillingness of the successive post-Milosevic governments to open a debate about the crimes committed against non-Serbs in the former Yugoslavia, coupled by a lack of leadership by the post-Milosevic governments on the issue of cooperation with the ICTY; (ii) economic and social difficulties accompanying the transition from a socialist to a market economy, and the attractiveness of populist rhetoric to those economically affected by the transition; and (iii) violations of the rights of the Serb minority in Kosovo, and the unresolved status of the province.