IT-02-54, Prosecutor v. Milošević1
Violent impetus, institutional forum, and individual focus all converged in a single trial. Prosecutor v. Slobodan Milošević was an enormous, magisterial event, both promising and demanding much, and in the end producing something quite different and quite ambiguous. It is that very ambiguity—matched to the hopes and expectations that surrounded the enterprise, and reflecting the conflicting passions that arose from the conflicts that had engendered both trial and Tribunal—which makes the Milošević trial so noteworthy and so worthy of close study now. Rather than a chronology of the trial, we consider here some of the major challenges and controversies that arose during its various phases, from indictment through termination.
The acts and events for which Milošević was eventually indicted span most of the Yugoslav conflict, from 1991 to 1999. This time frame also highlights an important initial controversy, which predates the actual legal process against Milošević: Why did that process not begin earlier? During this period Milošević held several of the most senior positions in Serbia and the FRY, and was generally acknowledged to be the dominant political actor among Serbs, with tremendous influence in the whole region. The Tribunal clearly had jurisdiction over Milošević, and there had been various calls for him to be indicted even during the Bosnian and Croatian conflicts.2
Equally, however, there were actors who viewed Milošević as an invaluable—or at least unavoidable interlocutor—in efforts to control or end the wars, and there were frequent, almost endemic rumors of deals to protect Milošević and other senior Serbian officials (and leaders of other warring parties, for that matter) from prosecution. The principals who supposedly offered such deals—U.S. envoy Richard Holbrooke, for example—consistently denied making any offers, even of an implicit nature, and no concrete evidence has surfaced of any such deal. (There are credible reports of such a deal between Holbrooke and Karadžić.*)
Nor was it clear that an indictment would be easy to sustain. Although reports of Milošević’s involvement and control over events in Yugoslavia the region was proverbial, they were, for the same reason, rarely of the nature needed to prove his control in a legally orthodox manner; adequate proof would require considerably more than the felt sense of popular opinion or the undocumented claims typical in the elliptical and partisan journalism of the region. The newly established Tribunal—already embarked on a course of low-level indictments—may not have had the means or the confidence to bring such a major indictment without the resources and support of the Western powers.*
Beyond this, there was the bare political fact of Milošević’s position and power—he was the sitting president of the FRY, and although that office presented no formal barrier to the ICTY’s jurisdiction, it did present considerable obstacles to actually enforcing that jurisdiction: No indictment was going to be efficacious in the short term. (This was arguably also true, though to a lesser degree, of Radovan Karadžić, who was indicted in 1995.) Later, this same logic acted to slow the Prosecution’s efforts to expand the initial Kosovo indictment to cover Bosnia and Croatia—production of those indictments would be labor-intensive, work which would be for uncertain gain so long as Milošević was secure in Belgrade.†
Whatever their earlier reticence, the attitude of the major powers changed considerably in the late 1990s. Milošević’s role as interlocutor and guarantor of peace became less critical after NATO’s control in Bosnia was consolidated and a final peace in Croatia secured; new foreign policy leaders in the United States and United Kingdom, in particular, were more committed to forceful intervention in the Balkans. As the Kosovo conflict deepened, there was no other actor with whom Milošević might usefully intervene to secure peace, because his regime was directly involved.‡
So, although there is no evidence of active obstruction by the United States or other major Western powers during the Bosnian and Croatian conflicts, there is evidence showing that their active support for investigation of Milošević increased dramatically as the Kosovo crisis deepened, and this alone may have made an indictment more possible.
Milošević was eventually indicted on 22 May 1999 for crimes in Kosovo, while that conflict was still ongoing, in an exercise that Arbour referred to as “justice in real time.”3 This was in a sense ambiguous—on the one hand, it suggested rapidity, as the indictment was completed in only about two months; on the other, it suggested, accurately, that little work had been done prior to the NATO campaign, and highlighted the long period of time that had elapsed since the wars in Croatia and Bosnia without an indictment.*
Four other senior members of the Serbian and FRY leadership representing important branches of the war effort in Kosovo were indicted along with Milošević: Dragoljub Ojdanić (chief of staff of the VJ), Nikola Šainović (federal deputy prime minister and special envoy for Kosovo), Vlajko Stojiljković (federal Minister of the Interior), and Milan Milutinović (president of Serbia, member of the VSO).4
The initial effect of the indictment is unclear. Fears that it might harden the regime’s resistance and make a peace deal harder did not materialize, as the Kumanovo Agreement ending the conflict was signed only weeks later.5 Equally, however, there is no persuasive evidence that the indictment accelerated the conclusion of peace: The decisive components appear to have been Serbia’s increasing diplomatic isolation—including signals from Russia that its support was at an end, the failure of Milošević’s strategy to divide NATO, and the rising possibility of NATO intervention with ground forces.
Amazingly, the loss of Kosovo—and the indictment—did not immediately threaten Milošević’s hold on power. However, shortly after these events, the political opposition began to organize more effectively, and elements of it received considerably increased support from the United States and other actors, now implacably determined to see the end of Milošević’s regime.6 It is practically impossible to separate out the effects of the outcome of the war from those, if any, of the indictment.
For Serbia, the question of how to dispose of Milošević once he was out of power was almost paralytically difficult.† Elements of the former regime remained well entrenched, and the former opposition, now in power, was itself of varied opinions. Once Milošević was taken into custody, officials considered charging him with crimes under FRY and Serbian law, including financial crimes—but not any crimes related to the wars in Croatia, Bosnia, or Kosovo. The decision to transfer Milošević to the Tribunal was divisive and controversial, with the new Serbian Prime Minister Đinđić generally in favor and the new FRY President Koštunica strongly opposed. External pressure to transfer Milošević was intense, with clear indications that a planned donor conference would be held up if he were not in The Hague. Ultimately, on the literal eve of that conference, the decision to transfer Milošević to the Tribunal was taken by the Serbian government under Đinđić, a move of dubious formal legality, as transfer—really, extradition—was in all likelihood a federal competence, and therefore under the authority of the FRY government.‡ (Đinđić had also signed undated documents that appear to pledge not to transfer Milošević,7 though what their formal value was or should have been is hardly clear. In any case, it is fairly clear that the Tribunal would not have been constrained by them.)
An amended Kosovo indictment was submitted and approved on 29 June—the day of his transfer from Serbia, meaning it had been in the works for some time—and this was the basis for Milošević’s initial appearance on 3 July 2001. The hearing was the scene of considerable media attention, which was perhaps mismatched to the narrow technical purposes it formally served. Still, certain elements that were to prove defining of the trial as a whole became apparent from the outset: Milošević struck a belligerent posture, refusing representation and refusing to enter a plea to the Kosovo indictment, a position he maintained in subsequent appearances in October for the Croatia indictment and in December for Bosnia. He rejected the authority of the Tribunal: “I consider this Tribunal a false Tribunal and the indictment a false indictment I have no need to appoint counsel to illegal [sic] organ.”8
Milošević criticized the establishment of the Tribunal as an illegal act, maintaining that the Security Council did not have the authority to create a criminal court, which, he said, should have been established through the General Assembly. These or similar arguments had already been examined in Tadić, and whatever their merits were no more successful here; the Trial Chamber rejected Milošević’s challenge in November, paving the way for trial to begin.9 Still, this firmly established Milošević’s rejectionist posture toward the proceedings and the institution.*
In October 2001, Milošević was indicted for crimes in Croatia, and then, in December, for Bosnia; work on these indictments had only begun in earnest in mid-to-late 2000 when it became clear Milošević might lose power.† Shortly before trial began, at the Prosecution’s request, the three indictments were joined, an ambitious strategy that took three cases—each sweeping in scope—and made them into one single, enormous trial.* In all, Milošević was charged with 66 counts of war crimes, crimes against humanity, and, for Bosnia, genocide;10 underlying these counts, were thousands of individual allegations.11 Milošević was charged on theories of direct and command responsibility.12
The trial proper began on 12 February 2002.§ Initial interest in the trial was intense, with the viewing gallery and an overflow press room full and major news media parked in front of the Tribunal.* Several broadcast stations in the former Yugoslavia transmitted the entire proceedings live† for several days.‡
The presiding judge was Richard May, an English jurist; the other two judges were Patrick Robinson of Jamaica and O-Gon Kwon of South Korea. The Prosecution was represented, on that day, by the Chief Prosecutor, Carla Del Ponte, although principal responsibility for the trial lay with Geoffrey Nice, a prominent British barrister and Queen’s Counsel. The individual phases of the trial were to be handled by three separate prosecutors: Dirk Ryneveld for Kosovo, Dermot Groome for Bosnia, and Hildegard Uertz-Retzlaff for Croatia. Awkwardly, given Milošević’s chosen line of defense, all four principal prosecutors on the case were from NATO countries.
Milošević represented himself, as he had insisted. However, concerned about the risks and burdens of self-representation, in September 2001 the Chamber had appointed three Amici Curiae:§ Michail Wladimiroff, Branislav Tapušković, and Steven Kay. After Wladimiroff was dismissed in October 2002 for making prejudicial comments about the case,14 Timothy McCormack was assigned for the remainder of the proceedings. Tapušković served until the end of the Prosecution phase; in June 2003, Gillian Higgins was also appointed. The Amici were officers of the court; they were expressly not defense counsel, although clearly their purpose was, in part, to compensate for the lack of counsel, backstopping the construction of a valid defense—and implicitly, therefore, also the legitimacy of the proceedings—and specifically to “assist the Trial Chamber”15 by:
(a) making any submissions properly open to the accused by way of preliminary or other pre-trial 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 which designated counsel considers appropriate in order to secure a fair trial.…16
Milošević also had recognized Legal Associates, authorized to communicate with him and having certain privileges associated with counsel, although they did not appear in front of the Tribunal. The first associates were Ramsey Clark and John Livingston, who served from November 2001 to April 2002, at which time Zdenko Tomanović and Dragoslav Ognjanović, both Serbian lawyers, took over, joined by Branko Rakić in October 2003.
One of the key tensions in the Prosecution strategy—something we have already seen in the Tribunal’s work more generally, in Chapter 2—was evident in Del Ponte and Nice’s opening statements: The case necessarily focused on one individual, but at the same time the Prosecution was very cognizant of the broader importance of the trial, and, equally, of the implications of its own chosen theory, which was going to require the prosecutors to locate Milošević’s actions in a historical and political context. Del Ponte repeatedly stressed the trial’s exclusive concern with Milošević’s guilt or innocence and rejected any suggestion of collective guilt17—a point she made in part by quoting the Chairman of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, from 1914.18 But, she acknowledged the historical aspects of the trial—not merely its historical importance, but its relationship to the contested history of Yugoslavia:
The history of the disintegration of the former Yugoslavia and the fratricidal conflicts of another age which it brought about is a complex process which must be written by many people. This Tribunal will write only one chapter, the most bloody one, the most heartbreaking one as well; the chapter of individual responsibility of the perpetrators of serious violations of international humanitarian law. It is up to other courts to make the moral, historical, or even psychological diagnosis of the accused and to analyse the social, economic, and political dynamic which constituted the basic fabric of the crimes that we are going to consider. The apparently inevitable concatenation of fear and hatred, political manipulation, the sinister role of some of the media but also the heroism of the resistance and those who opposed him [Milošević] throughout the former Yugoslavia, the survival of dignity and civil spirit and humanity, all of these are mechanisms which must be analysed, dissected, and explained because it is imperative to respond to the victims’ demand for truth, “victims” in the broadest sense of that term, and to reduce the risks of seeing this played out again in another place in the world and, in particular, in the Balkans. But here, more modestly, it is Slobodan Milosevic’s personal responsibility which the Prosecution intends to demonstrate for the crimes ascribed to him, nothing but that, but all of that.19
“Nothing but that, but all of that” proved a kind of self-deceptive modesty about what the trial entailed, and what the Prosecution’s own strategy—including its reliance on a “monumental history”20 of the conflict—required. The disavowal of a historical component to the trial—the rhetorical reassertion that it was only writing one chapter about individual responsibility—rests uneasily with the unavoidably ambitious program of analysis, and of consequential social change, adumbrated in Del Ponte’s speech. It was an ambition the Prosecution would find difficult to put aside—and one that Milošević’s own strategy made almost impossible to abandon.
Nice’s opening statement discussed Milošević’s rise to power, locating it, as we have seen in Chapters 1 and 3, in the decentralization of power following the 1974 SFRY Constitution.21 Choosing 1974 as a starting point may have seemed like a judiciously narrow approach to history and context, in comparison with Milošević’s expansive historical reading, but it too implicated deeply contested histories and threatened to distract from the forensic core of the Prosecution’s case. Thus Nice opined on what the phrase “weak Serbia, strong Yugoslavia” meant to Serb nationalist opinion,22 and showed video footage of Milošević’s meetings and speeches in Kosovo in the 1980s.23 For the Prosecution, these events were early indications of intentionality and a will to violence in the name of Greater Serbia, but they were also, and inevitably, claims about the course and causes of Yugoslavia’s dissolution.
When it came to Milošević’s victims, Del Ponte and Nice’s principal rhetorical focus was on the Croats, Bosniaks, and Albanians, but each also directed appeals to the Serb population, describing them too as victims of Milošević. From a certain perspective, this was entirely plausible, and indeed Milošević’s popularity among Serbs had fallen precipitously over the decade of war.* Still, the idea that the two hundred thousand Krajina Serbs displaced by Operation Storm would consider themselves principally victims of Milošević, rather than of the Croatian forces before whom they had fled, was, on perhaps understandable psychological grounds, implausible. Similarly, that a barrister from the United Kingdom—one of the principal belligerents in the bombing of Serbia—would describe the KLA as Milošević’s creation, and the war which NATO had waged as Milošević’s choice, reflected a radical miscalculation of Serbs’ self-image.24 It is generally acknowledged that the appeal to Serbs was totally ineffective—on the contrary, support for Milošević among Serbs actually increased in the early days of the trial.25
More important for our purposes, it reflected a radical misunderstanding of the broader purposes and likely effects of the trial. An appeal to Serbs in this form—however plausible an historical reading it may have been—implied a belief that this case was and should be about much more than the core forensic purpose the Prosecution itself proclaimed. After all, the appeal truly was rhetorical—none of the 66 counts actually spoke of crimes against Serbs. The Prosecution proclaimed that it was trying a single man, and nothing but that; yet it saw the potential for the trial to be about something more, and it did not hesitate, but seized that chance.†
In a sense—and although it spoke first—the Prosecution was anticipating and responding to a strategy that the Accused had already articulated. In his opening statement, which lasted for two days, Milošević elaborated on the themes he had announced in his pretrial appearances. He reiterated his objections to the legality of the Tribunal—an example of his tendency or tactic, seen throughout the trial, to return to issues that, formally and legally, had been resolved. He declared that the trial was asserting the collective responsibility of Serbia and the Serbian nation—a doctrinally untenable position, given the Tribunal’s mandate, but one consonant with widely held views both among Serbs and outside observers critical of Serbia’s role in the wars—and that his role therefore was to defend, not merely himself, but the whole nation:
Over the past two days, all the Prosecutors that we have heard here have uttered one particular sentence; that is to say that they are just trying an individual.…But in all the indictments, they are accusing the whole nation, beginning with the Serb intelligentsia. They have accused the Serbian intelligentsia, led by the Serbian Academy of Arts and Sciences…
They are accusing St. Vidovdan [sic] and the battle of Kosovo Polje.…
[T]his show which is supposed to take place under the guise of a trial is actually a crime against a sovereign state, against the Serb people, against me.26
Part of that defense was to focus on NATO’s bombing campaign, and Milošević spent hours recounting the damages wrought and painting Serb behavior as defensive. The formal legal relevance of this was questionable, but this was not the point. In his opening, as throughout, Milošević framed the trial in expressly political and historical terms. The Prosecution and Chamber largely acquiesced in this strategy—the Prosecution in part because it too had a broader agenda, and because (as we will shortly see) its formal strategy required it to view the wars as of a piece, and the Chamber out of concerns to give a self-represented Accused full scope to develop the case he wished—but by doing so, they allowed Milošević to set the terms of contestation.
And with that, the trial began.
The Prosecution proceeded through its case in three parts, beginning with Kosovo, which lasted until the end of September 2002; then Croatia and then Bosnia, which ran until the Prosecution rested in February 2004—a total of two years.
The Scope of the Charges:27 The charges against Milošević presented certain particular challenges. At the most basic level, the core challenge that confronted the Prosecution was the sheer enormity and complexity of the case they had undertaken: 66 counts, composed of hundreds of specific allegations; hundreds of proposed witnesses; all spanning three separate conflicts—for each of which background information had to be filled in and often contested. In addition, the Prosecution had advanced multiple theories of liability, which meant it would have to explain the application of each.*
The purpose of the trial, of course, was to show Milošević’s relationship to the crimes, but the Prosecution could not simply stipulate that crimes had occurred and spend its time and effort proving Milošević’s relationship to them; it also had to establish the underlying acts themselves. For Kosovo, in particular, there were no prior cases, or even investigations, on which to rely—a consequence of having issued the indictment “in real time;” the Kosovo phase was not the culmination of a series of cases but the Prosecution’s first attempt.
The result was that considerable courtroom time had to be spent during the opening phase establishing the existence of the crime base. This required close examination of individual killing sites and testimony by eyewitnesses who, by their very circumstances, could speak to terrible events in this village or that prison camp but not to Milošević’s role. The Prosecution’s original ambition to bring representative evidence from different areas and phases of the conflict, as well as different kinds of crimes and victims, multiplied the number of discrete events about which the Prosecution had to present witnesses and evidence.
For Bosnia and Croatia, the Prosecution was able to rely to a considerable extent on the information and evidence it had developed in previous cases, but had a different challenge: to build the case for the de facto lines of authority from the RS and RSK to Milošević.28 This resulted in a relatively much larger share of evidence being proffered concerning the political relationships among the Serb factions—in Kosovo, Milošević’s de jure lines of authority were easy to demonstrate.* And even though the Prosecution could rely on its prior jurisprudence, it still placed strains on its case in the Bosnia phase by committing to present a comprehensive and representative crime base, with the result that, by the end of its case, the Prosecution had failed to lead any specific evidence on many individual elements of the charges.
Theories of Liability in a Leadership Trial—JCE: Of course, even establishing the fact of a given crime would not necessarily say anything about Milošević’s relationship to it—that required a separate inquiry into the flow of information and chains of command between the killing fields and Beli Dvor, the presidential offices in Belgrade. Milošević was a leadership case, which implied a certain structure for the evidence. The Prosecution had to prove, for each count, that Milošević was directly responsible either for ordering, planning, or aiding the perpetration of crimes, or that he had an obligation to prevent or punish the crimes under the theory of command responsibility. But evidence of his actual involvement was often difficult to establish—Milošević was not physically present at any of the crime scenes, and it was improbable that he even knew about many specific actions that took place,† so each of these basic theories of liability required proving his relationship to chains of command for the armed forces, police, and paramilitaries doing the actual murders, rapes, and expulsions.
Proof of his command responsibility could be derived from demonstrating his legal and factual control of the forces committing the crimes, together with his failure to prevent or punish. But proof of his direct liability required either documentary evidence, testimony from insiders, or a theory that could explain Milošević’s necessary and logical relationship to known events and the actions of others. The testimony of individuals who were his victims was essential for establishing the nature of the underlying crimes, but did little to establish Milošević’s relationship to those crimes. For this, the Prosecution relied on intercepted telephone calls, Milošević’s former international interlocutors, and insiders.‡
The complexities of a leadership trial required an ambitious interpretation of liability. The principal interpretative tool at the Prosecution’s disposal was the theory of JCE, discussed in Chapter 2. JCE allowed the Prosecution not only to assert Milošević’s own guilt, but to do so in a way that also showed or implied the complicity of the senior leadership in the FRY and Serbia, the RS in Bosnia, and the RSK in Croatia.29 The theory of JCE constructed—from the Prosecution’s perspective, revealed—a systemic relationship between the actors in these otherwise discrete conflicts, and positioned Milošević at the center of that web. In fact, Milošević was the only formal, legal point of connection between the members of the JCE involved in Kosovo and those involved in Bosnia and Croatia; no other named member of the JCE was alleged to have been involved in all the conflicts, as Milošević was.
In certain respects, as we have seen concerning the Tribunal in general, JCE not only simplified the Prosecution’s evidentiary task, it also fit with the overarching Greater Serbia theory that had formed the basis for joinder of the three indictments.*
The Effects of Joinder: As noted, the Prosecution had asked to join the three separate, sizable indictments in one trial, and this happened just before trial began. This decision, on its own, swelled the size of the trial enormously, although three separate trials might well have lasted longer and introduced other complexities, such as overlap between different trials and appeals. Beyond the problem of the sheer size of the trial, however, the decision to join the indictments influenced particular features of the case, not only increasing its complexity but altering its substance.†
Joinder requires that there be some threshold element of commonality between separate indictments—a single transaction.30 The Prosecution successfully argued that Milošević and others had been involved in a “single transaction” of alleged crimes spanning three conflicts, three countries and eight years, which was apparent in the overarching JCE whose members sought to create a Greater Serbia through the violent expulsion of non-Serbs.31 The Prosecution’s theory, implicitly, sought to explain the origins, course, and essential unity of the entire Yugoslav conflict—a causal account immediately attractive to those parties and constituencies for whom the Tribunal’s purpose was to create a comprehensive narrative that could have a transformative impact on the war zones.‡
Joinder also made it doctrinally necessary to have a single transaction with some over-arching theme—and therefore, quite possibly, it was the desire for joinder that drove the choice of this narrative, rather than the other way round. The logical or causal relationship between the requirements of joinder and the Prosecution’s theory is ambiguous. In formal, doctrinal terms, the Prosecution moved to join the indictments because it perceived a commonality centered on the idea of Greater Serbia. But is this what happened? Perhaps instead the Prosecution—desiring to join the trials for other reasons (economy, convenience, publicity) and knowing what the rules required—searched for a commonality. That they did not find a very persuasive one simply indicates that the best factual characterization of these events did not easily fit the doctrinal frame.
Partly as a consequence of the joinder decision, the Prosecution led with the Kosovo phase. In certain respects this was logical, as Kosovo was the most developed of the indictments, with the most straightforward theory of liability, including clear and plausible de jure lines of authority leading from VJ forces and Serbian police units to Milošević. At the same time, however, leading with the Kosovo indictment required the Prosecution to present its case out of chronological order, a potentially consequential matter given the unified nature of the case it was bringing and its reliance on an overarching theory about actions taken over time to create a Greater Serbia.* In addition, leading with events in Kosovo meant putting first the part of the case most amenable to Milošević’s preferred courtroom strategy of appealing to Serbian nationalism: the Kosovo phase involved crimes against Kosovar Albanians—the community with which Serbs had the worst relations—that had taken place at the same time as NATO’s military intervention, which had produced among Serbs the kind of unifying resentment that predictably occurs when people are bombed.
Evidence and Testimony: The tensions between the Prosecution’s ambitious strategy and the challenges it posed played out in witness testimony and evidence. The sheer production of information in the trial was overwhelming: 1.2 million pages of evidence, 930 exhibits, and 117 videos; 47,000 pages of trial transcripts; 64,000 pages of filings; 328 live witnesses. In certain respects, the contours of the Prosecution’s case were driven by the need—formally imposed by the Chamber, but also an almost logical problem—to constrain the trial’s metastasis. Witness lists were pared down—the Prosecution originally sought to call a thousand witnesses, just as Milošević in his phase was to prove jarringly ambitious in trying to call every imaginable actor to the stand—and crime sites reduced. Often, allegations were simply abandoned without any effort to present evidence.32 Perhaps the most striking example of this concerns the Sarajevo sniping and shelling counts. The original indictment had charged 44 sniping and 27 shelling incidents. When the Amici challenged all but one of each, the Prosecution conceded that it lacked specific evidence, but argued—unsuccessfully—that “overview evidence” of a shelling and sniping campaign should be sufficient.†
Witnesses: The Prosecution had initially planned on building its case with insider witnesses—quite logical in a leadership case in which the formal lines of authority were not necessarily the real ones;‡ the initial indictments, though formally trial-ready, were in that sense a bet on the catalytic effect the trial process might have in delegitimizing the remnants of Milošević’s regime, or at least a bet that the Prosecution’s case would benefit from the same processes that had led to Milošević’s transfer to the Tribunal. The Prosecution had some mixed success in securing insiders, though much less than it had hoped, and some witnesses proved a mixed blessing when they recanted testimony or proved far more timid in open court than in their statements.33
The Prosecution also relied relatively heavily on international witnesses—diplomats, generals, and politicians who had met with Milošević during the 1990s, as well as expert witnesses familiar with the history and politics of the former Yugoslavia. The first category were effective in showing Milošević’s real level of control and power, as well as demonstrating, in some cases, that Milošević was specifically aware of violent and criminal events. At the same time, the very fact that these were foreign officials, often from the very countries that had so recently warred against Serbia, played directly into Milošević’s preferred framing of the trial as a continuation of Western and NATO aggression against victim Serbs. General Wesley Clark, for example, was able to provide powerful corroboration of the Prosecution’s core assertions that Milošević was in effective control of military forces in Bosnia—even providing, on one reading, direct indications that Milošević may have known about the killings at Srebrenica.34 Still, Clark was something else as well—the senior military commander of NATO’s 1999 campaign against Serbia.
Of course this is a general problem in criminal trials—people willing to testify against a defendant often have their own history, and their own biases—but direct, compromising conflicts of this kind were multiple and manifest in Milošević. The frequent use of such witnesses suggests several possibilities: that the Prosecution really was focused on a narrow, forensic case and uninterested in the broader politics; that the Prosecution was tone-deaf; or that the Prosecution’s original strategy of turning Serbian insiders had essentially failed, and it turned to an alternative that, although forensically effective, also played into Milošević’s hands.
As in many of its other trials, the Prosecution also introduced a number of expert witnesses—historians, experts on genocide, military analysts examining particular incidents during the wars—in all some 19 reports, accompanied by testimony. In many respects, this trial represented the most ambitious elaboration of the historical strategy advanced by the Prosecution in its early cases—historical argument used, not merely for background (as in Tadić) but to advance causal claims thought to be essential to its case, especially concerning genocide and JCE.* Many of the expert witnesses were employees of the Prosecution.
The other major category of witnesses consisted of ordinary former Yugoslavs—survivors or the family members of victims who testified to the events they themselves had witnessed.† As noted, their purpose, for the Prosecution, was to provide essential evidence of the crime base, but only rarely—say, in the case of a member of the VJ or MUP—to testify concerning the middle rungs of the hierarchy of violence leading to Milošević himself. In that sense, the actual victims were of marginal importance to the main lines of contestation in this leadership trial.‡ Still, even though the forensic purposes of the Tribunal did not place victims at the center of proceedings, there was, consistent with the broader purposes of reconciliation that had always surrounded the ICTY, a ready expectation that testifying would provide a kind of catharsis for witnesses, and vicariously for the broader populations they represented or which identified with them.
It is undoubtedly true that some witnesses experienced a sense of vindication or psychological relief from confronting their oppressor—alleged oppressor, technically, but there was surely little doubt in the minds of those on the stand. Still, it is not clear that the experience was cathartic for all. Many observers have noted the dynamics that often developed between these victim-witnesses and Milošević.35 Many (though certainly not all) of those testifying were rural, relatively uneducated people, and were often intimidated or overwhelmed during the trial—not only because of the traumatic events they were describing but because of the encounter with their educated, worldly, and confident former president.* Milošević was often (though not always) curiously well-informed about the lives and circumstances of these villagers: Although he had always been known to have a strong grasp of wonkish detail, the level of knowledge he displayed during trial—concerning, say, the location of a house in relation to a power line in a small village, or the intimate details of a witness’ background—was hardly information he could retrieve from memory, and showed how effective a network of legal assistance and contacts in the military, government, and security services of Serbia Milošević maintained. All of this made the process of testifying unsettling and unsatisfying for many witnesses. And, of course, in some cases, there is good reason to suppose that witnesses were concerned about the consequences of testifying.36
Under the rules of the Tribunal, testimony for the Prosecution gives the Accused the right to cross-examine, which Milošević made liberal use of. Indeed, one of the key drivers of the Prosecution case was the Accused himself: The press of time that weighed so heavily on the Prosecution’s case was not only a function of its scope, but also of the broad license granted to Milošević by the Chamber to conduct extensive cross-examinations, often consuming considerably more time than the Prosecution itself did. Later in the trial, the judges were more careful in accounting for the actual use of time by each party, but early on, the Prosecution’s clock was often running at the discretion of an Accused who was demonstrably uninterested in keeping the proceedings brief. This inevitably affected the Prosecution’s decisions about what witnesses to call, as each witness raised the specter of Milošević clawing away increasingly precious time allotted to the Prosecution.†
The Perverse Effect of Written Submissions: This calculation about the effects of cross-examination was exacerbated by the Tribunal’s rules on the form of testimony. Shortly before the Milošević trial opened, the Tribunal had expanded the possibilities for written, rather than oral, testimony—so-called Rule 92bis testimony.37 The purpose was to streamline long trials and spare witnesses the difficulties of testimony far from home, but the effect in Milošević was quite different.
The Prosecution made liberal use of Rule 92bis, in part so that it could introduce far more evidence than it could through the more laborious oral testimony process—a long trial would have been unmanageably longer if every witness had testified for the Prosecution viva voce. However, considerations of fairness and the strong pull of judicial norms led the Chamber to allow Milošević to cross-examine Rule 92bis witnesses in person. This meant that Prosecution witnesses would often not testify directly, instead having their statements noted into the record, but would then be extensively cross-examined and challenged.*
On occasion, of course, this allowed additional points favorable to the Prosecution to enter the record that otherwise might not have, when Milošević raised issues that had not been introduced in the witness’ statement.38 But this was really an artifact of the cross-examination process in general—Milošević often made such mistakes, either out of inexperience or because his political strategy had entirely different purposes—and would have occurred even if the witnesses had testified directly. The net effect of the Rule 92bis process, therefore, was to minimize the visibility of the Prosecution’s case, and highlight that of the Accused. On many a day of trial, the only visible story—the points of drama—were Milošević laying into a witness, with the Prosecution’s claims mutely read into the record.
Some witness testimony received less publicity for entirely different institutional considerations. Given the nature of the crimes alleged and the still-fraught political scene in the former Yugoslavia, there were legitimate concerns about the safety of individuals who testified in the trial. This concern was a general one, and the Tribunal had established protections for evidence and witnesses that went far beyond protections afforded in municipal legal systems. Protections range from withholding of a witness’ name and distortion of his image and voice to lengthy testimony in closed sessions; numerous filings are subject to confidentiality rules.† It is impossible to know, from the outside, exactly what testimony, of what quality or consequence, was given in secret, but the transcripts alone indicate that the number of protected witnesses was substantial.‡
None of this implies that the Prosecution was ultimately prevented from making an effective case. Over the two years of its case, the Prosecution produced an enormous documentary record, and certain moments of testimony or pieces of evidence, such as the Škorpioni video, showing the execution of Muslims from Srebrenica by Serbian forces, had undeniable force.§ Particular pieces of evidence—such as intercepted communications between Milošević and Serb military and civilian leaders in Bosnia and Croatia—were of considerable value to the Prosecution case.39 When the Amici challenged large parts of the Prosecution’s case in a motion to acquit, the Chamber upheld every count and ordered the trial to continue, meaning that the Prosecution had at least met the minimum burden of bringing a case that could yield conviction, and possibly had done much more.
Still, the challenges produced by the size, complexity, and strategy of the Prosecution’s case, and the scope afforded it by the Chamber, marked the Prosecution phase and raised considerable doubts about the solidity of its case.40 At the end of the Bosnia phase, the Prosecution case stumbled to anticlimax. In contrast with the expansive expectations that girded the opening of the trial, the maneuvers here were narrow, technical, and cautious. There was no closing statement, only a written notification that the Prosecution would rest its case on 25 February 2004.41 Although there were efforts to reopen particular parts of the case, and Milošević’s actions in defense allowed the introduction of further evidence, this was the end of the Prosecution’s main effort to shape the facts and the narrative.
At the end of the Prosecution phase, the Amici Curiae moved for acquittal on a number of counts and charges, though not on the entire case. In June 2004, the Chamber upheld all the counts but entered acquittals on a large number of specific allegations.42* This meant that trial would continue. In his own defense case, Milošević continued the themes and strategy evident in his behavior from the beginning of the trial—a highly politicized defense identifying himself and the Serbian nation as co-defendants. Throughout the trial, Milošević denied the legitimacy of the Tribunal, although in fact he took an active role in the proceedings, cross-examining witnesses, and arguing points.43 His witnesses were often of minimal value to a forensic defense, but were intended to vindicate his claim about Western imperial encroachment. Even his choice of hostile witnesses reflected this orientation—many were Western politicians who were unlikely to actually come testify on his behalf, but demonstrated his thesis even by their refusal, and produced vivid political theater.44
The Self-Representation Crisis: But perhaps the signal aspect of Milošević’s conduct—and of the trial as a whole—was his decision to defend himself. No other defendant had yet availed himself of this right, but Milošević—evidently recognizing the potential and the power that self-representation afforded him—had immediately seized upon it. When they ordered the trial to continue, the judges revisited the issue and appointed the Amici as defense counsel,45 setting the stage for an intensification of the struggle among Chamber, Prosecution, and Accused that had begun with Milošević’s first appearance in 2001, which we may refer to as the trial’s “self-representation crisis.”†
Milošević’s decision to defend himself had far-reaching consequences for the conduct of the trial and its perception, and has produced a clear legacy in the doctrine and practice of ICL. From the very beginning of the trial, Milošević signaled his intention to represent himself. The Prosecution strongly opposed this, and attempted, at various points, to persuade the Chamber to impose counsel. Its reasons were complex.
Normally, one might expect a prosecutor to be quietly pleased that a defendant would take such an unwise action, but the Prosecution recognized the risks it faced from a defiant Milošević—risks both to the legitimacy of the process and to its own ability to craft and control the narrative of trial. From the first status conference held in August 2001, the Prosecution argued that Trial Chamber should impose counsel in addition to the Amici Curiae.46 In November 2002, the Prosecution made a formal submission asserting that because of Milošević’s disruptive behavior and recurring illness, the Chamber should appoint the Amici as counsel.47 The Chamber too was cognizant of the dangers to the trial, but was also constrained by the clear doctrinal structure in which it operated, because the Statute of the ICTY affords an unambiguous right to defend oneself in most circumstances.48
Milošević’s bravura decision to represent himself was qualified in practice, however. In fact, Milošević was advised by a considerable cadre of lawyers and researchers, both in The Hague and in Serbia. There was nothing untoward about this assistance, which the Tribunal was aware of, allowed, and even facilitated.* But it was not a fact Milošević himself widely advertised—especially not the scope of this assistance—presumably as it clashed with the image of him defending himself in splendid and sympathetic isolation against an overbearing, imperial bureaucracy.
And, regardless of the size of the support staff on which Milošević drew, there were limits. His access to resources and to the outside, though expansive by the standards of Scheveningen, was nonetheless quite restricted compared with that of the Prosecution, and encountered a bottleneck at the jailhouse door: Milošević may have had a large staff of supporters, but he could not meet with them directly. Most critically, whatever help he received from outside, he was on his own in court, with no advisors to fall back on or to hand him notes, or take up a line of questioning on his behalf if he was tired, unwell, unprepared, or faltering.49
Representing himself brought tremendous advantages—most especially in giving Milošević vastly more time before the court and cameras then he would have had as a defendant—and active influence on the tone, pace, and agenda of the trial. Rather than sitting mutely in a corner, Milošević was at the center of the court process for every witness, whether his or the Prosecution’s.
Self-representation also gave Milošević specific formal and procedural advantages. Had he testified in his capacity as the Accused, Milošević would have been subject to cross-examination by the Prosecution. However, appearing as his own attorney, Milošević was free to push that role as far as the judges would allow, using his own examinations in chief and cross-examinations to press his broader political claims and to make statements that, in effect, constituted his own testimony, but were immune from cross-examination. This greater scope for action was particularly apparent on those occasions when Milošević introduced evidence that was apparently fabricated or distorted.50
At the same time, it is clear Milošević made many errors of the kind a trained specialist would not make—as well as errors that counsel could not make by virtue of not having been the president of Serbia and the FRY. In cross-examination, for example, Milošević sometimes effectively demonstrated his own authority in ways that made the Prosecution’s case for it. Indeed, to some, the level of knowledge he displayed in court—and what it suggested about the resources at his disposal—read as an implicit concession that he really was as powerful, and involved, as the indictment alleged. He also focused almost exclusively on Kosovo, largely failing to mount any defense concerning charges for Bosnia and Croatia. In December 2005, the judges rejected his request for additional time, noting that he had already used about three-quarters of his allotted time and yet was still discussing Kosovo.51
Still, on balance it seems clear that self-representation was a net benefit to Milošević—especially if one is attentive to the extralegal aspects that were, for him, more important than the construction of a technically satisfactory defense case52—and a net harm to the Prosecution. It was also harmful to the institution, as the widespread view that the trial was being run by Milošević damaged the Tribunal’s reputation.*
With the start of the Defense phase, the Chamber, citing continued concern about Milošević’s health and the increased burden of defending himself, finally did appoint counsel—and in a move that was as logical as it was perhaps ill-advised, took the Prosecution’s earlier advice and appointed the Amici Steven Kay and Gillian Higgins as defense counsel.53 This was logical because the Amici had been acting as quasi-counsel and were familiar with the case. But they had been, all along, agents of the Chamber, not of Milošević, and he did not trust them.† Their appointment only exacerbated the problems inherent in a trial with an Accused determined to resist the authority of a court and to conduct his own defense, turning the chronic problem of Milošević’s self-representation into a full-blown crisis.
Milošević refused to cooperate, and witnesses for the Defense boycotted the hearings en masse. The new defense counsel, left to guess at Milošević’s wishes based on his list of 1600 potential witnesses, were frozen out. Although in theory the Chamber could have simply treated this as a strategic choice by the Accused not to cooperate in his defense, and the nonappearance of witnesses as his (manufactured) misfortune, they recognized—accurately—that the integrity of the trial was at risk. By November 2004, the Appeals Chamber backed down, allowing Milošević to conduct his own defense throughout the trial.54
Some observers read Milošević’s decision to represent himself as an expression of ego—the dictator unable to concede the reality of his newly straitened circumstances.55 Such critiques were sometimes coupled with a palpable sense of frustration at the damage being done to the process, and a narrow set of assumptions about what constitutes rational behavior in a trial. From this perspective, Milošević was doing considerable damage to his own prospects for acquittal. From another perspective, however, Milošević’s decision seemed eminently rational: an assessment—probably accurate—that his main chance for success rested on defying and delegitimizing the Tribunal, rather than contesting individual counts on the Prosecution’s terms. Nor were ego and rationality at odds: Even if Milošević had no hope of acquittal—which, on his own public statements about the biased nature of the process, he ought not to have had—he did have hope of influencing his legacy and politics in Serbia, and these goals were arguably well served by a rejectionist strategy.
In any event, focusing on personality, though it may be useful for devising tactical and procedural responses to the problems of self-representation, is probably beside the point: If there is a dictatorial personality, its operation is almost a given in such cases. The more ICL focuses on those “most responsible,” the more it will confront the challenge of self-representing Accused who have constituents, agendas, and the power to affect courtroom process, public reception, and events outside the courtroom. In this regard, “the Milošević trial is rich in lessons about what to do and what not to do.…”56
The self-representation crisis of Milošević compelled the Tribunal to devise new procedures for dealing with such defendants. The Registry developed a formal pro se liaison office to facilitate self-representation. Equally important, the Tribunal has drawn lessons from the Milošević trial and has become more aggressive about policing the boundaries of self-representation. The influence of these processes, and of the less-yielding attitude the ICTY’s judges have learned from Milošević, can be seen in the trials of Šešelj, Karadžić, and Mladić, as well as in other tribunals, such as the trial of Charles Taylor before the Special Court for Sierra Leone.57
Relations with the Chamber: The judges of the Milošević Chamber have come under considerable criticism for their failure to manage the trial with a firmer hand.58 Part of this concerned their management of the Prosecution case, but the dominant theme was surely their relations with Milošević—certainly, from one perspective, criticisms of how they handled the Prosecution case were really a function of their inability to constrain Milošević, as on that view Milošević’s posturing, interminable cross-examinations, and health delays were the principal brake on the trial’s progress.*
Health:59 Milošević’s health declined considerably during the course of the trial. Even when he arrived at the Tribunal in 2001, he suffered from hypertension and a number of cardiac ailments, and he was regularly treated or referred to medical specialists. During the Prosecution phase, on the advice of Milošević’s doctors, the judges had radically reduced the schedule of the trial—in August 2002, to allow four days of rest every two weeks, and in September 2003, to three sessions a week—a practice that continued during the Defense phase.60 In addition, there were numerous adjournments for health reasons, totaling 66 days during the Prosecution phase, and five delays in the start of the Defense phase.61 As we have seen, the assignment of counsel in the Defense phase was in part a response to Milošević’s deteriorating health.† In December 2005, Milošević petitioned to be released to Russia for medical treatment; the Chamber’s denial of this request—which was widely supposed at the time to carry the real risk that the Accused would never return once in a sympathetic country62—was on appeal at the time Milošević died.63
A frequent charge was that Milošević deployed his medical condition to strategic ends, falling ill after particularly difficult witnesses or at other convenient moments, or more generally using claims of ill health to delay proceedings.64 It is certainly true that Milošević frequently refused to take his prescribed medicines or to be hospitalized when this was recommended,65 and that he was able to secure alternative medications illicitly—including some that could counteract his hypertension medications66—by making use of the privileged communications he enjoyed as a self-representing Accused.67 Still, in retrospect, imprecations by external observers declaring that Milošević’s health absences were strategic look both uncharitable and misinformed. The man, it turns out, really was ill. Still, whatever the causes, the effect was to dramatically slow down the trial. In this sense, Milošević’s health was a significant contributor to the length of a trial that was never going to be short.
Milošević’s health was not the only medical issue that affected the trial. Richard May, the presiding judge, had become increasingly ill, and resigned in February 2004, just two days before the end of the Prosecution phase; he died that July. His replacement on the bench, Iain Bonomy, was seated in June. Thus, one of the three judges set to hear the case and render judgment had not been present for any of the Prosecution phase, and had only the transcripts and documentary materials on which to rely. This is not unusual—domestic legal systems also have to deal with the problems created by judges dying, becoming incapacitated, or retiring. But in this case, one standard remedy—mistrial—was almost unthinkable, which, together with the way things actually ended up, suggests the fragility of ICL as an immature legal project.
Milošević died sometime in the morning of 11 March 2006; the Chamber formally terminated proceedings on 14 March. After the termination of the trial, Del Ponte mentioned that the trial was only 40 hours from completion.68 This was true as a matter of calendar hours, but did not count time for cross-examination or administration, let alone health delays—indeed, when Milošević died, the trial had been adjourned for 12 days. At the rate things had been going, the trial would have continued for a few months—the Defense phase was scheduled to finish in May 2006—after which there would have been a delay of six months to a year for the final judgment to be issued, at any point during which his death would have terminated proceedings; and presumably both sides would have appealed.*
The Investigation: There were frequent reports in the media—especially in Serbia and Russia—that Milošević had been poisoned by the Tribunal in order to silence him or avoid embarrassment from an acquittal, or that he had committed suicide. Milošević had written to the Russian Embassy in The Hague on 8 March complaining about his medical treatment;69 this, coupled with the Chamber’s denial of his request to be treated in Russia, increased speculation that the Tribunal had silenced Milošević, although there is no evidence of this.
Even before this speculation arose, it must have been immediately obvious to the Tribunal that the circumstances of Milošević’s death would be questioned. The same day Milošević died, the president of the Tribunal, Judge Fausto Pocar, assigned Judge Kevin Parker to conduct an investigation into the circumstances of Milošević’s death, which was completed that May. The actual death was investigated by the Dutch authorities, who also conducted an autopsy. The autopsy and related medical reports found the cause of death to be a heart attack,70 and excluded the possibility of murder or suicide. This finding is obviously unsatisfactory to certain observers, who maintain that the investigations were flawed, or even a cover-up, and that Milošević was murdered.71
Contested Legacies: Though it perhaps no longer seems so anomalous, the Milošević trial was criticized for its great length and inordinate ambition—the more so given its termination. The very fact that the partisans of various sides each seek to find fault with the other on this particular point—the Prosecution’s critics pointing to its excessive ambition in charging and joining indictments, the Prosecution’s defenders pointing to Milošević’s extravagantly dilatory tactics—suggests that all agree the trial was bloated and disproportionate.
Some effects of the Milošević trial that are most clear and direct stem from this consensus. It seems that the trial of Saddam Hussein was as focused and narrow as it was—addressing a single crime site—in significant part a response to the sprawl of Milošević, though the vicissitudes and outcome of that trial, in turn, have generated their own criticisms. Equally, the self-representation crisis and the difficulties associated with the Rule 98bis motion to acquit have generated concrete reforms within the ICTY that will affect practice in other tribunals.
The substantive claims made in Milošević have also had effects on the later jurisprudence of the ICTY. As we have seen, the fact that Milošević represented the pinnacle of an alleged JCE spanning the entirety of the wars had consequences for the kinds of evidence that were led. For the Bosnia and Croatia phases, evidence of the crime base and of relationships between actors could be introduced from other cases as adjudicated facts, subject to juridical norms concerning equality of arms and the right to confront witnesses (though not for Kosovo, as Milošević was the first case covering that conflict). Later, after the Milošević trial, this same process has been equally available for other, related cases—which is why documents and motions continued to be filed under the Milošević case, requesting the lifting of confidentiality for documents relevant to other trials.72 Of course, while evidence was introduced (and challenged by Milošević) during the Prosecution phase, the Defense evidence was prematurely terminated and there was there never any adjudication, and so its probative value is minimal.
Beyond the reprocessing of evidence, however, those other cases, have frequently been seen as proxies for the missing judgment in Milošević, present an ambiguous picture of what might have been decided. To take one example, the 2011 conviction of Momčilo Perišić, the VJ Chief of Staff during the Bosnian and Croatian wars, could be seen as an implicit condemnation of Milošević himself—but then, in 2013, Perišić was acquitted on all counts, a turn that made it far more difficult to see how Milošević, if he acted through Perišić, could have been found guilty for the same crimes. The unrendered judgment is only imperfectly—and, as Perišić suggests—only contingently available by proxy drawing on other cases.
Adding to the epistemological uncertainty, we must consider the strategic influence Milošević has exerted on other cases: It seems clear that the Prosecution’s strategy in presenting the relationships and responsibility between senior Serbs in Belgrade and Pale changed in cases after Milošević, and this may in significant part represent the Prosecution’s own assessment of the prospects its original theory faced, in light of its experience in Milošević. In turn, of course, the outcomes of those cases may have been different. But whatever the strategic considerations, a changing Prosecution narrative across these cases raises questions about whether the Prosecution, or the ICTY more generally, is producing a coherent narrative of Belgrade’s relationship to the Yugoslav wars.
In one sense, the premature termination of Milošević is a gift to historiography. The existence of the trial’s truly enormous documentary record can provide historians with access to materials they might never have been able to assemble, and certainly not as efficiently—and this is true notwithstanding the lack of a verdict.* Indeed, in the absence of a formal verdict, the scope outside observers have to craft the judgment they think most plausible is even more open than it would have been had there been a decisive outcome. And of course the materials will be valuable even for researchers who are not interested in the question of Milošević’s criminal guilt, but rather wish to know about the broader conflicts and conditions in which that narrower legal question was embedded:
[The evidence] should have an effect on how future generations understand the region’s history and how the conflicts came to pass: because no truth commission has been established to look into the events in the region, the Milosevic trial may be one of the few venues in which a great deal of evidence was consolidated about the conflicts. The fact that Milosevic had the opportunity to test the prosecutor’s evidence in cross-examination enhances its value as a historical record.73
At the same time, the large role that confidential processes played in the trial will affect its public legacy. We have seen above that the minutes of the VSO were never handed over to the ICJ, which has led to considerable speculation about what effect those documents might have had on the outcome in the Bosnian Genocide case. Considerable portions of the Milošević trial’s evidence remain unavailable to researchers or the public, and there are no plans for them to be made fully accessible.
The very fact that Milošević’s trial terminated without judgment certainly poses a challenge to views of ICL that place considerable emphasis on the process of trial as having educative or transformative effects. If that were easily, uncomplicatedly so, the Milošević trial—which was the Prosecution’s flagship case and the focal point for its efforts—would have had greater or more observable effects than it has, despite its lack of formal judgment. But what exactly the effects have been or might be—the broader legacies of the Milošević trial—are contested questions, as yet uncertain, and the subject of many of the chapters that follow.