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Although the Milosevic trial did not reach a conclusion, it confronted numerous novel issues and therefore provides important lessons that may be useful in other international courts handling cases of comparable magnitude. On the basis of our research into this limited set of issues, Human Rights Watch believes the following lessons are worth consideration:
- The charges in the indictment or warrant should be representative of the most serious crimes alleged against the accused. Duplication of charges within a single indictment should be avoided and, in the case of a high-ranking official who is not present at the crime scenes, the prosecution should from the outset ensure that adequate focus is given to evidence of the chain of command and not disproportionately to victims’ testimony from crime scenes.
- Where there is sufficient linkage between them, Human Rights Watch believes that holding a single trial for a series of crimes allegedly committed by a high-ranking defendant has several advantages. It ensures that a more complete picture of the individual’s alleged overall role in the perpetration of the crimes is presented. A single trial also eliminates the risk that the defendant would not be tried for the most serious crimes with which he is associated. It is more efficient since one proceeding may eliminate the need to call witnesses to the stand twice.
- Expeditious prosecution of complex and serious cases requires an adequate pretrial period to allow for complete disclosure to the defense and translation of prosecution evidence. Sufficient pretrial time also allows both the prosecution and the defense to fully prepare their cases. An effective period of pretrial management would allow courts to eliminate issues that are not contentious and to further narrow the issues for which direct oral testimony is required. It should also shorten the time between the close of the prosecution case and the opening of the defense case. In a high-profile case where there is public pressure to begin a trial before it is fully trial-ready, the courts should resist such pressure and take steps to explain to the public the ultimate benefits and necessity of not prematurely commencing a case.
- Because the Milosevic trial began eight years after the ICTY began its operations and was the twelfth trial relating to crimes perpetrated by Croatian and Bosnian Serb forces, there was substantial evidence already on the record about what had occurred in Bosnia and Croatia. Not all high-level trials will take place in similar circumstances. The trial of a senior political figure may be the first time that crime scene evidence is presented. In such cases, the prosecution will need to be even more selective in the number of crime scenes it includes since there will be no previously adjudicated facts and prior testimony that it can draw on as potential evidence.
- By their nature, trials of high-level perpetrators will demonstrate not only what happened at particular crime scenes but also the criminal infrastructure that allowed such serious crimes to be perpetrated. Prosecution strategy must ensure that this is given the appropriate focus and resources at trial, while balancing the need to present crime scene evidence. This will require hard decisions and a tightly tailored case.
- Trials of high-level suspects will be important for the documentation of events and the role and responsibility of various actors, irrespective of any conclusion relating to the defendant’s guilt or innocence. The efficient prosecution of a case will be a significant factor in the quality of that record.
- Increased use of written testimony was an important change introduced in the Milosevic trial. When a written statement is used in lieu of a direct examination, however, copies should be made available to the public in a timely manner so they are able to follow the witness’s testimony.
- Use of strict time limits can be an incentive to present an efficient case and is fair to the defense while moving the trial forward.
- The right of self-representation should be subject to the requirement that the defendant be able to fulfill the role as counsel and attend court sessions regularly.
- When an accused represents him or herself, assigning counsel to act as amici curiae is an appropriate way of ensuring the accused’s rights are protected. In legally and factually complex cases, it is important to have attorneys capable of looking after technical issues that a defendant representing himself may not be capable of handling, to ensure a fair trial.
- All organs of the court should keep in mind the importance of making the proceedings meaningful to the communities most affected by the crimes.
December 2006
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