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Trial Procedure

In addition to helping shape how future generations assess the Balkan wars of the 1990s, and Serbia and the FRY’s role in the events, the Milosevic trial offers important procedural lessons for cases of a comparable scope. As the first trial of a former head of state, this case presented unprecedented challenges for the ICTY. Proving the guilt of a senior official nowhere near the multiple crime scenes and establishing a chain of command in circumstances where no lawful authority existed is very difficult and time-consuming. Furthermore, this case encompassed three conflicts over the course of nearly a decade, which added to the breadth of material that needed to be produced.

The unfortunate end of the case before its completion after four years of trial, however, gave rise to a great deal of criticism of the proceedings. Critics have focused on two areas in particular: the duration of the trial (and specifically the scope of the indictments); and permitting Milosevic to represent himself. Other courts trying these types of cases may confront both issues. As more of these cases are prosecuted, it is important that national and international courts and prosecutors draw trial management lessons from the Milosevic trial.

Scope of the Indictments

Duration and scope of the case

One persistent criticism of the trial is that it lasted too long.²⁰⁷ Several reasons for this are often cited: the prosecution attempted to cover too much territory and the three cases should have been tried separately; there were too many counts in the indictments; the trial was inefficiently managed and moved at a slow pace; and the judges allowed Milosevic too much room for speechmaking and filibustering.²⁰⁸ However, trial participants (including prosecution staff and amici curiae) and those who followed the trial closely note that innovative practices for streamlining proceedings actually advanced during the Milosevic trial. They did not feel that the judges let Milosevic have too much leeway on the whole. Other factors, in addition to Milosevic’s ill-health—such as the large number of crime scenes involved and the rush to trial—may have contributed more to the excessive duration of the trial.

Joinder

One of the most controversial issues relates to whether the prosecutor was correct in seeking to join the three indictments. The Trial Chamber itself suggested on more than one occasion, even as late as November 29, 2005, that the Kosovo case be severed.²⁰⁹ By then, however, the trial was so close to its end that both the prosecution and the defense objected to the severance.²¹⁰

Arguably, the indictments should have been prosecuted separately. However, there were advantages to a single trial encompassing all three sets of charges. Trying Milosevic in one case created a broader context for the events and presents a more representative picture of his role in the war. Because the federal military and political structure had to be shown in order to demonstrate Milosevic’s role in events in each conflict, there were efficiencies in trying the three indictments as one case. Witnesses did not have to be called more than once, which is not only more efficient, but also has benefits for witness security and may minimize trauma for a testifying victim. Trying a defendant once also ensures consistency in the verdict and sentencing since it eliminates the risk that different trials will result in different conclusions of fact and allows the defendant to be sentenced once for the crimes.

Apart from these reasons, members of the prosecution teams involved with Milosevic’s case gave another reason for wanting to join the three indictments: the fear that the international backers of the court would not have the political will to financially support a second trial for Bosnia and Croatia if Milosevic was already serving a long sentence for his acts in Kosovo.²¹¹ The concern that Milosevic would not be tried for genocide and the more grievous crimes in Bosnia and Croatia, particularly in light of his ill-health, is not a minor matter: it would have been disappointing had the only evidence presented at trial been in relation to Kosovo. This is particularly true since the proceedings were important for their revelations regarding the role of various FRY and Serbian government entities in the wars in Croatia and Bosnia. As discussed in the evidence section, some of the details of this involvement were not well known before the trial and might never have been examined fully in court if Milosevic had not been tried. Because, unlike in Kosovo, the Serbian government’s role in Bosnia and Croatia was indirect, the trial was particularly important in establishing a reference point for those conflicts.

Nevertheless, the decision to join the three indictments into a single trial should have affected the way the trial was conducted, but it did not. By not changing the original trial date which was set for a mere 12 days after the joinder decision, the Trial Chamber did not allow any time for reconsideration of the structure of the case. The prosecutor did not have time to amend and consolidate the indictments in order to accommodate the new trial format. A single, more streamlined indictment covering all three conflicts but with fewer crime scenes and fewer charges would have undoubtedly resulted in more efficient proceedings. However, the time constraints imposed by the trial date made this task impossible to accomplish. Indeed, in Human Rights Watch’s view, the crucial problem with the trial was that it was pressed to start too quickly (see below).

Counts /Crime scenes

The trial is frequently criticized for the large number of counts against Milosevic.²¹² However the actual number of counts was not necessarily the cause of the protracted length of the trial. In practical terms, the real issue is how many crime scenes were used to establish that all the elements of the offenses charged existed. For example, to prove one count of murder as a crime against humanity the prosecution is required to show that the killings were part of “widespread or systematic attacks.” The prosecution could choose to establish this by presenting evidence of 50 different murders in 50 different municipalities. Alternatively, the prosecution could choose to charge each of the 50 murders as individual counts of a crime against humanity of murder based on the exact same evidence. Thus the same evidence could be used to prove either one count or 50 counts of the crime against humanity of murder. The main issue with the Milosevic indictments therefore relates to how many crime scenes need to be established to support the indictment rather than the actual number of counts. However, there are also lessons that may be drawn about selecting charges representative of the worst crimes rather than using the trial to demonstrate the entire range of crimes committed in the region.

Milosevic’s indictments contained a total of 66 counts. Apart from the genocide counts, all of the counts were charged at least two or three times. For example, there were three counts of persecution (relating to different geographical areas of the conflict) as a crime against humanity, five counts of murder (again in different geographical locations) as a crime against humanity, four counts of wanton destruction of villages as a violation of the laws or customs of war, and three counts of plunder as a violation of the laws or customs of war. Had the indictments been combined to reflect the prosecutor’s theory that they constituted a single transaction, Human Rights Watch believes duplication may have been eliminated and the indictment would likely have contained fewer counts. The primary benefit of the elimination of duplicate counts is that it could have resulted in a decision to reduce the number of crime scenes needed to prove each charge. Because each count would only need to be proved once or twice for the entire conflict, rather than once for each region, it may have taken fewer crimes scenes to show, for example, the “widespread or systematic” element of the crimes. Given that, as president, Milosevic was not alleged to have actually been present at any of the crime scenes and given that the tribunal had already been through a number of trials by the time of the Milosevic trial, it is debatable as to how necessary it was to establish each time what happened in a great number of villages in order to show the “widespread or systematic” nature of crimes. The critical element to prove in Milosevic’s case was the chain of command. The importance of ensuring that victims also have a voice in the trial by way of witness testimony needs to be incorporated into a narrowly-tailored strategic prosecution plan.

The prosecution started the case with an unwieldy amount of factual allegations to prove. As drafted, the indictments included allegations relating to hundreds if not thousands of acts because Milosevic was charged for each count with two forms of criminal liability (individual responsibility and command responsibility) and each count included multiple allegations of criminal acts and crime scenes.²¹³ One count of persecution in Croatia, for example, alleged more than 15 forms of conduct, such as torture and beating, deportation, destruction of homes and sexual assaults, in 57 crime scenes. That was even after the Croatia indictment was amended and three forms of conduct had been eliminated.²¹⁴ It simply was not practical to introduce evidence in relation to every single crime listed in the indictments. Over the course of the trial, the Trial Chamber asked the prosecution to limit the number of crime scenes on several occasions.²¹⁵ In the first months of trial the Trial Chamber pointed out to the prosecution “it was necessary for it to consider presenting a case which was of a smaller size than that which had been pleaded by selecting incidents which were representative of those charged in the indictment[s].”²¹⁶ The prosecutor agreed with this and did in fact trim dramatically, at various stages, witnesses from its witness list.²¹⁷ The prosecutor also amended the Bosnia indictment to remove 51 crime scenes one year after the original indictment was confirmed.²¹⁸

However, while remedial steps were taken, a more effective approach would have been to start the case with leaner indictments. This was apparent in the Trial Chamber’s Decision on the Motion for Judgement of Acquittal after the close of the prosecutor’s case. In its decision, the chamber dismissed many factual allegations, often after the prosecutor had conceded that the allegation was unsupported by evidence.²¹⁹ Nevertheless, the Trial Chamber ruled that even without 130 crime scenes it considered not to have been proven beyond a reasonable doubt, the prosecution had presented enough evidence at that stage to secure a conviction on all the counts in the indictment, a sure indication that the indictments were too broad.²²⁰ As disappointing as it may be to victims and investigators, hard decisions need to be made from the outset about how many crime scenes should be introduced at trial. A consideration that could be used to make a determination as to which crime scenes should be used in a trial of this scope is what crime scene evidence has been introduced at other trials. Testimony, or even judgments, from other cases could be used to streamline evidence in relation to crime scenes. This was in fact done at the Milosevic trial, but crime scene evidence still could have been narrowed further.

Another factor that undoubtedly played a role in the large number of crime scenes in Milosevic’s indictments was the desire to include crime scenes that represented all the crimes that occurred in each conflict. While wanting to be thorough and provide a comprehensive account of an individual’s role in a conflict is one legitimate goal, it must co-exist with other realities of prosecuting such a high-level defendant. Human Rights Watch believes that, as is now reflected in the mandate for the prosecutor of the International Criminal Court, presenting a case representative of the most serious crimes committed should be the primary objective of a prosecutor in cases like these. The prosecutor could narrow the case by focusing on the worst of the charges. For example, it does not seem absolutely necessary to have included multiple counts of plunder and destruction or willful damage to historic monuments and institutions dedicated to education or religion in the charges against Milosevic. Given the important interests in conducting an efficient trial, perhaps destruction of cultural objects and property damage could better be demonstrated in simpler trials of lower-level officials.

The ICTY has itself acknowledged the need to trim crime scenes and counts. In a plenary session convened in May 2006, the judges adopted rule 73bis, which explicitly allows Trial Chambers to invite the prosecutor at the pretrial stage to reduce the number of counts charged or direct the prosecutor to select the charges on which the trial should proceed.²²¹ “Fixing the number of crime sites or incidents charged” is also part of the ICTY’s plan to ensure trials are completed by the end of 2009.²²²

Since the Milosevic case, the court has taken a more aggressive approach in eliminating crime scenes. In the Milutinovic case, in which six Serbian officials are charged for crimes in Kosovo, the court issued a decision excluding three areas—Racak, Padaliste, and Dubrava—from the indictment.²²³ The indictment on which the Milutinovic case is based is the same indictment under which Milosevic was originally charged in Kosovo²²⁴ and evidence on these crimes scenes was introduced in the Milosevic case. The judges in the Milutinovic case noted that the remaining nine mass murder sites “adequately reflect the scale of the alleged criminal activity” and are “representative of the crimes charged in the indictment.”²²⁵ The judges held the view that the prosecutor did not need to show what happened in those areas in order to prove her case. This is interesting in that those were particularly complicated crime scenes involving several events and numerous witnesses. Judges have also invited the prosecutor to trim the indictment in other casesand have even amended the rules to allow them greater latitude in their ability to request narrower indictments.²²⁶

Conduct of Proceedings

Start of trial

Slobodan Milosevic’s trial began on February 12, 2002. Because of the inclusion of the Bosnia and Croatia indictments, no other case at the ICTY has moved so quickly from indictment to trial. Milosevic had been in custody for only seven months before the start of trial proceedings, almost a record by the usual standards of the ICTY.²²⁷ The average time between the arrest of a defendant and the start of his trial at the ICTY is over two years. The relative speed at which this trial began is particularly striking given that the indictments for Bosnia and Croatia, the most complex indictments the ICTY is likely to see, were confirmed a mere three and four months respectively prior to the start of trial. Although a lengthy delay before starting Milosevic’s trial may have raised concerns with respect to his right to a speedy trial, more time was necessary to allow for case preparation and for full translation and disclosure of materials to the defense. The need for more time to prepare was especially acute in this case, both because of its complexity and because, as discussed above, the Appeals Chamber’s decision on joinder was made less than two weeks before the trial was scheduled to begin. Moving the Milosevic trial to the front of the queue had several negative consequences for the overall management of the trial.

First, expediting the start of the trial meant that the case had to begin with Kosovo because the other cases were not yet trial-ready and because disclosure for Bosnia and Croatia had not yet been made to the defense.²²⁸ Starting with Kosovo was undesirable for a number of reasons. As the prosecutor pointed out in her motion for joinder, beginning with Kosovo was not necessarily the most coherent way to present a case covering all three conflicts since Kosovo occurred last chronologically. The prosecution theory of the case indicated that evidence of the earlier events was relevant to what happened in Kosovo as it showed what could be expected if Milosevic’s policy was carried out. Furthermore, the prosecutor argued that the Bosnia and Croatia indictments could be seen as more substantial and more grave, and that victims from Bosnia and Croatia who suffered in earlier events should obtain resolution of the charges relating to them first.²²⁹

More importantly, from the prosecution’s perspective, starting with the Kosovo indictment had the unintended effect of allowing Milosevic to portray the NATO air campaign as a rationalization for the crimes he was accused of in Kosovo. At the start of the trial, the proceedings had the complete attention of the Serbian public. An article written at the time described the atmosphere in Belgrade as reminiscent of the “mood during a Yugoslav basketball world cup match” with people following Slobodan Milosevic’s opening statements wherever they could—live in restaurants and cafes or on small portable televisions.²³⁰

One Serb analyst has described how by beginning with Kosovo the tribunal lost its best opportunity to demonstrate to the Serbian public the war crimes committed in the last decade and Serbia’s role in supporting them.²³¹ Had the trial begun with Bosnia and Croatia and some of the worst atrocities, it would have reached a broad audience at a time when the public was completely focused on the trial. By the time the prosecution reached the Bosnia and Croatia segments of its case, the trial had lost much of its audience.²³²

Other negative consequences of the expedited start date include problems with disclosure and preparation for trial. Late disclosure places an undue burden on the defense to have to prepare for trial while simultaneously sorting through voluminous disclosed material from the prosecutor. The prosecutor had trouble completing disclosure of translated witness statements even in relation to Kosovo in time for the February 12 start of the trial despite having had greater time to prepare that portion of the case.²³³ Disclosure for Bosnia and Croatia took place after the start of the trial.

One member of the Office of the Prosecutor told Human Rights Watch that if Milosevic had gone through all the videos that were disclosed he would still be watching them to this day.²³⁴ Milosevic himself complained in a pretrial conference that he had received 90,000 pages and 500 cassettes for Bosnia and Croatia indicating that if he read “500 minutes a day, I need 360 days to read this only once” and that he did not have time to look at it during examinations.²³⁵ Milosevic estimated that for a case of this scope he needed at least two years to prepare his defense.²³⁶ It is hard to see how the defense could have been fully prepared for trial and formulated a theory of defense without having had an opportunity to review the evidence in advance of the start of trial. Milosevic refused to look at the material disclosed by the prosecution and there was no one to object to the trial’s opening date. If Milosevic had agreed to representation by counsel, his lawyer would have likely objected to the expedited trial date due to the lack of time to prepare.

Furthermore, the prosecution did not have adequate time to prepare its case. For example, the prosecutor had not finished identifying witnesses for Kosovo less than a month before commencement of her case.²³⁷ Because the decision to allow joinder was granted 12 days before the start of trial, with no change in the trial date, there was no opportunity to re-strategize about the presentation of the case incorporating all three conflicts. A longer pretrial phase would have also enabled more rigorous pretrial management during which the issues may have been narrowed to those that were most contentious: crime scenes and witnesses could have been eliminated and a shorter consolidated indictment could have been prepared.

The prosecutor’s office would have been able to present the case chronologically and coordinate more fully with additional time. Three separate prosecution teams had been working independently on gathering the evidence and preparing the indictments for the Bosnia, Croatia and Kosovo cases. Until Geoffrey Nice was brought on board as the lead prosecutor to coordinate all three cases shortly before the start of trial (in November 2001), there was little coordination between the teams. A lengthier pretrial process would have created an opportunity for improved coordination between the teams, which in turn may have led to a more focused, coherent case.

Given what must have been evident negative implications for both the prosecution and the defense and for overall trial management, it is striking that neither party nor the Trial Chamber acting sua sponte sought to delay the start of the trial.

Duration of the case

Although the trial lasted for more than four years before its abrupt end with Milosevic’s death in March 2006, its duration is somewhat misleading. Several factors need to be considered. From September 2003 the court sat for only three days a week on account of Milosevic’s ill-health.²³⁸ Each day’s sitting lasted for a maximum of four hours. Multiple recesses were necessary to accommodate Milosevic’s health issues and to allow the defense time to prepare. The Trial Chamber calculated that the entire prosecution case-in-chief was presented in 360 hours, or 90 four-hour sitting days.²³⁹ However, once cross-examination and administrative tasks were factored in, the prosecutor’s case actually took 294 sitting days to present.²⁴⁰

Due to Milosevic’s ill-health, as the trial progressed the court’s schedule became less continuous and the days sitting in court more widely dispersed. In August 2002 a doctor recommended four consecutive rest days be inserted every two weeks of trial.²⁴¹ In 2004 the court only heard evidence on 33 days, four of which were only two- or three-hour sessions. In a September 2004 decision the Trial Chamber noted that by July 2004 the trial had been interrupted during the course of the prosecutor’s case over a dozen times on account of Milosevic’s ill-health, thereby losing some 66 trial days.²⁴²

So while the trial appeared to go on forever, in fact time in court was short.²⁴³ The total length of actual court time is not unreasonable for a trial of this magnitude involving three conflicts over the course of nine years.

Yet the fact that the trial lasted for so long created the impression that there was not enough attention paid to prosecuting the case in an efficient manner. However, court papers reveal that in the first months of the trial “the prosecution filed a document in relation to the future management of the trial in which it invited the Trial Chamber to consider possible creative solutions to … various procedural/evidentiary issues.”²⁴⁴ This was filed in response to the Trial Chamber’s request for assistance in managing the length of the trial.²⁴⁵ Orders from before the trial even began reference the importance of judicial economy.²⁴⁶ At several points during the trial the prosecution was ordered to shorten its witness list and did so, while—as noted above—the chamber at more than one point considered severing the trial in the interests of concluding the trial more expeditiously.²⁴⁷ In fact, as a result of concerns about time, the time-saving techniques to move through evidence more efficiently in the Milosevic trial have had an influence on other trials at the ICTY. These include strict use of time controls and increased use of written testimony.

Time controls

One of the important means used to control time during the Milosevic trial was the use of strict time limits. A set amount of time was given to the prosecution to prove its case.²⁴⁸ Although extensions were granted,²⁴⁹ the imposed time limit forced the prosecution to track its case to the minute and use its time efficiently.²⁵⁰ The defendant was also given a set amount of time to present his case, 150 days. This figure was equal to the 90 days the Prosecution spent presenting its case-in-chief plus time for cross-examination and administrative matters.²⁵¹ The judges on several occasions urged Milosevic to make the most of his time by using written testimony.²⁵²

The Trial Chamber also imposed time limits on Milosevic’s cross-examinations, though the time for cross-examination could be extended at the discretion of the judges if it was proving fruitful.²⁵³ This approach had the benefit of minimizing the judges’ time sparring with Milosevic over use of his time on cross-examination.

Setting time limits was widely praised by observers Human Rights Watch interviewed as a successful means of improving judicial economy, and has since become more commonplace.²⁵⁴ As part of its “Completion Strategy” to finish trials by the end of 2009, the ICTY President Fausto Pocar announced the tribunal’s plan to increase the use of strict limitations on the time available for presentation of evidence.²⁵⁵

Written testimony

By setting strict time limits the judges encouraged the prosecution to develop ways to introduce evidence into the record as efficiently as possible. Thus, one of the primary innovations resulting from the Milosevic trial is the increased use of written testimony.²⁵⁶ In December 2002, in its Report to the Court on the Time Remaining in the Case, the prosecution applied for permission to submit evidence-in-chief from witnesses in writing. Witnesses whose testimony was submitted in this manner would be made available for cross-examination and to affirm the truth of the statement. The prosecutor could provide a brief summary of the witness’s statement for the record prior to cross-examination. The application to introduce written testimony in lieu of an examination-in-chief was made pursuant to rule 89(F) which states,

A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.

Although a partial form of this practice had been used in previous trials,²⁵⁷ the rules had been amended in December 2000 to allow written testimony through rule 92bis. Rule 92bis gives the court the discretion to admit written testimony unrelated to acts and conduct of the accused, but which could help to establish other elements of the crime such as the existence of a widespread or systematic pattern of attacks.²⁵⁸Here, however, the prosecutor proposed submitting written testimony from witnesses that did sometimes relate to the acts of the accused. In other words, witnesses’ written statements were to be introduced in lieu of direct examination in an effort to speed up the trial. The Trial Chamber held that rule 92bis had to be taken into account when deciding whether to admit such written statements and the prosecution’s application had to be denied because the testimony related to conduct of the accused. The Trial Chamber was willing, however, to receive into evidence written statements pursuant to rule 92bis unrelated to the conduct of the accused and the prosecution was able to admit a great deal of crime scene evidence in this way.²⁵⁹

The Appeals Chamber reversed this decision, holding that the witness’s availability for cross-examination in court addressed concerns about introduction of written testimony relating to conduct of the accused.²⁶⁰ It determined that the restrictions on written evidence contained in rule 92bis were based on an assumption that the witness testimony was to be presented in writing because the witness was unavailable and therefore could not be subject to cross-examination nor attest to the truth of his or her statement in person. The Appeals Chamber ruled that rule 92bis therefore applied only when the statement is intended to be submitted in lieu of any oral testimony. When the witness was available to testify, the concerns underlying rule 92bis restrictions did not exist and written evidence, even if it went to the acts and conduct of the accused, could be admitted.

The Appeals Chamber’s decision marked a major shift in how evidence was presented at the trial. After it was handed down, 25 statements were admitted pursuant to rule 89(F). Additionally, a total of 197 statements unrelated to conduct of the accused were admitted pursuant to rule 92bis.

The use of written testimony has since become standard practice at the ICTY. The Appeals Chamber’s decision was memorialized on September 13, 2006, when the rules were amended to clearly allow the Trial Chamber discretion to admit written statements that relate to the acts and conduct of the accused if the witness is present in court. Under new rule 92ter a written statement may be admissible provided that: i) the witness is available for cross-examination and any questioning by the judges; and ii) the witness attests that the written statement or transcript accurately reflects the witness’s declaration and what the witness would say if examined. In a June 2006 statement to the UN Security Council, ICTY President Pocar also noted that “making greater use of written witness statements in lieu of examination-in-chief” was part of the tribunal’s efforts to ensure increased efficiency of trial proceedings.²⁶¹

Although the expanded use of written testimony is an important innovation allowing for more expeditious trials, it is not without its drawbacks. The primary drawback of using written direct testimony is that the judges do not have the opportunity to assess the credibility of the witness based on his or her oral evidence-in-chief. They are left to rely on the witness statement and the impression they gather of the witness during cross-examination. As Judge David Hunt pointed out in his dissent on the motion, the statements are prepared by a party to the case, not a neutral inquisitorial judge as in a civil law system where the judge is obligated to present both inculpatory and exculpatory information in the statement. Therefore, there is a risk that “the best gloss on the evidence which suits that party” will be put on the statement and, because the statement is entered as an exhibit as written, there will not be a proper opportunity to get more accurate, unvarnished information directly from the witness.²⁶²

Using written statements as evidence-in-chief also makes it difficult for the public to follow the testimony. Journalists covering the trial as well as members of the ICTY’s Outreach Programme all complained that it was difficult to listen to cross-examination (and cover the trial) without knowing the content of the witness’s direct testimony. The judges and the opposing counsel have the benefit of receiving the witness statement 14 days prior to the testimony, when the party seeking to adduce the written testimony is required by the rules to give notice of his intent to introduce a statement or transcript.²⁶³ Although the statements were tendered as evidence, they were generally unavailable to people in the public gallery until after the witness had testified; the short summary of the statement sometimes provided by the prosecution before cross-examination was deemed insufficient by observers in the gallery.²⁶⁴ This problem could be solved easily either by distribution of summaries of witness statements in advance, a short direct examination, or by having the statement ready for distribution as soon as it is admitted. Given the importance of these trials to the public-at-large, how they are viewed by the public should not be ignored.

In general, although there are some drawbacks to written testimony, in some circumstances it may be a useful way to expedite proceedings. To minimize these drawbacks, measures should be taken to ensure the audience is able to follow the testimony.

Management of proceedings with a pro se defendant

One of the lasting impressions of the Milosevic trial is the lengthy bombastic speeches that characterized many of Slobodan Milosevic’s courtroom interventions.²⁶⁵ Observers often found that Milosevic was primarily seeking to advance his political agenda more than mount an effective legal defense.²⁶⁶ When Human Rights Watch set out to examine how the Trial Chamber managed Milosevic as a pro se accused, we fully expected to find extensive criticism of the leeway he was given, especially on his cross-examinations. However, the people closely involved with the case—including the prosecution, the amici, and long-time observers—all agreed that although the judges gave Milosevic extra time for cross-examinations, the extra time was not excessive. Although there may have been some cumulative effect over the course of the trial, no one was able to provide an example of an egregiously long cross-examination. On the whole, most courtroom observers Human Rights Watch spoke with felt that the extra time was given in an effort to ensure the trial was fair, and that this approach was preferable as a safeguard against an appeal.

There was also praise for the judges for limiting the time for cross-examinations but allowing Milosevic to use the time as he liked. As time got short, the judges sometimes provided direction from the bench as to fruitful areas of cross-examination. This approach, as mentioned above, limited time spent arguing with Milosevic about his cross-examination. Providing guidance from the bench as to beneficial areas of examination was also useful in ensuring a fair trial.²⁶⁷

One issue did arise that may be a lesson for future courts. At the outset of the trial, Milosevic refused to address the court properly, referring to the presiding judge as “Mr. May” and not rising from his seat. It has been noted that had the bench not tolerated this sort of behavior from the start, it might have set a different, more respectful tone for the proceedings.²⁶⁸ As an example of a way to deal with this conduct, the court could have situated the microphone in such a way that it required the defendant to stand in order to be heard. Some observers suggested that the typical domestic court judge dealing with misdemeanors would not tolerate disrespectful behavior; nor should judges at the ICTY.²⁶⁹

Self-Representation

One controversial decision associated with the trial took place before the trial even began—the decision to allow Slobodan Milosevic to represent himself.²⁷⁰ Milosevic informed the Trial Chamber at his initial appearance that he did not intend to be represented by counsel.²⁷¹ At the first status conference the Trial Chamber noted that it agreed that it would not be appropriate to impose counsel on Milosevic, stating that, “We have to act in accordance with the Statute and our Rules which, in any event, reflect the position under customary international law, which is that the accused has a right to counsel, but he also has a right not to have counsel.”²⁷² Article 21 of the ICTY Statute, upon which the court is relying, provides,

4. In the determination of any charges against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees in full equality:

….

(c) to be tried without undue delay

(d) to be tried in his presence and to defend himself in person or through legal assistance of his own choosing….²⁷³

The Trial Chamber considered assigning defense counsel again in December 2002 and September 2003, each time affirming the defendant’s right to represent himself even though he was ill. When necessary, the Trial Chamber modified the court’s schedule to allow him to continue to represent himself despite his increasing health problems.²⁷⁴ As the trial went on and Milosevic’s health worsened, the Trial Chamber reconsidered its position. On September 2, 2004, after the defense case had been postponed five times due to the ill-health of the accused, the Trial Chamber decided that the right to represent oneself as set out in the ICTY’s Statute is a qualified right, and that under the circumstances “it is both competent to assign counsel to the accused and in the interests of justice to do so.”²⁷⁵ In making its decision, the Trial Chamber noted that its fundamental duty was to make sure that the trial was both fair and expeditious, and that there was a real danger that the trial would not conclude without assistance of counsel. The Trial Chamber ultimately concluded that the right to represent oneself may be waived if the effect of its exercise is to obstruct the achievement of a fair trial.²⁷⁶ According to the court’s order, the assigned counsel would have the duty to represent the accused by preparing and examining witnesses; making submissions on fact and law; seeking appropriate orders from the accused; and endeavoring to obtain instructions from the accused while retaining the right to determine what course to follow and acting in the best interests of the accused. Milosevic could continue to participate in the conduct of his case, but only with leave of the Trial Chamber, and his examination of witnesses would follow that of assigned counsel.²⁷⁷

In response to this decision, Milosevic’s defense witnesses boycotted the trial. On appeal, the Appeals Chamber agreed in principle with the Trial Chamber’s decision but changed the modalities to minimize the impact of the assignment of counsel so that essentially no change was made in the defense presentation. As the Appeals Chamber said, “To a lay observer, who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible.”²⁷⁸ Indeed, the trial continued essentially as it had before.

In several interviews observers stated that the decision allowing Milosevic to represent himself was the single largest problem with the trial. Some noted the irony that had Milosevic been tried in Serbia, for example, he would have been assigned counsel without question. In civil law systems, defendants are routinely assigned counsel where they face serious or complex charges, on the basis that it is in the best interest of the defendant to have a lawyer to deal with the complexities of the case. That is true even when the defendant, as was the case with Milosevic, is himself an attorney.²⁷⁹

However, the ICTY was essentially established on the adversarial model and the Trial Chamber was constrained by this and by the plain wording of the statute. Differences between inquisitorial and adversarial systems make assignment of counsel difficult in an adversarial situation. The defense plays a more prominent role in an adversarial system because the lawyers, and not the judge, are responsible for presenting the case. If the accused refuses to cooperate with the lawyers, it is not possible to present a full defense. Several observers, including defense counsel, noted that no one knew his case better than Milosevic. The amici also indicated they would be unable to present a defense without instructions from the accused.

However, the court need not be held hostage by the defendant’s right to self-representation. As the Trial Chamber noted, “the right to defend oneself in person is not absolute.”²⁸⁰ For example, self-representation may be terminated where the defendant deliberately engages in serious and obstructionist conduct. The Milosevic trial, however, was unique in that it was the first case in which the defendant’s physical health, not his deliberate conduct, was the reason for the need to assign counsel. The extent of his physical deterioration could not be foreseen by the trial judges at the start of the trial.

In future cases judges may wish to impose conditions on a defendant who wishes to represent himself, including that he be able physically to function as counsel by being able to appear in court a certain amount of time per week. Had that condition been made at the outset, it would have been easier for the Trial Chamber to assign counsel at an earlier stage without abridging or appearing to abridge Milosevic’s right to defend himself. If self-representation begins to interfere with the overarching obligation to conduct an efficient trial, it is not unreasonable to assign counsel. The court’s obligation to conduct “fair and expeditious trials” also includes taking into account the interests of the victims and the public and of the defendant him or herself in having an efficient trial process. This obligation should be one factor in making a determination to assign counsel, though it does not completely avoid the problem of an accused refusing to instruct counsel.

In this case, there were a number of very good reasons to assign counsel. It is difficult for a practitioner, even one with experience in international law, to handle a case as complex as this one, so to imagine that someone who lacked experience in this area could handle it himself is quite difficult. Undoubtedly Milosevic’s case would have benefited a great deal from the assistance of experienced counsel had he agreed to be represented.

Use of amici curiae

A valuable lesson from the Milosevic trial was the innovative use of the amici curiae. Shortly after Milosevic informed the court that he intended to represent himself, the Trial Chamber decided in a pretrial conference, in the interests of securing a fair trial, to assign counsel to appear before it as amicus curiae. The amici would assist the Trial Chamber by

(a) making any submissions properly open to the accused by way of preliminary or other pretrial motion;

(b) making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate;

(c) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and

(d) acting in any other way that designated counsel considers appropriate in order to secure a fair trial.²⁸¹

The amici are assigned to assist the court in ensuring that a proper determination of the case is made. The amici do not represent the defendant.

Here, the amici assigned to the case filed hundreds of technical motions (including the rule 98bis Motion for Judgement of Acquittal) that Milosevic ultimately agreed with, even if he did not offer them explicit instructions. Because the case was so complex, having counsel to look after the technical aspects of the case was an invaluable part of ensuring Milosevic had a fair trial.

In interviews with the amici, they noted that they preferred the role of amicus to being assigned as defense counsel.²⁸² They pointed out that had they been assigned to represent Milosevic from the start, they would have an ethical obligation not to act without instructions. Given that Milosevic would have refused to instruct assigned counsel, they would not have had the opportunity they had as amici to file motions helpful to the defense without conflicting with their obligations to the client. In any event, the assignment of counsel as amici was very important in a case this complex requiring a great deal of expertise in ensuring Milosevic’s rights were represented. A significant additional benefit of assigning amici is that should the defendant be unable to continue to represent himself, counsel who have been participating in the trial from its beginning are available to step in.