FRÉDÉRIC MÉGRET
Faculty of Law, McGill University*
What might a principled justification for joinder look like? Although there are many arguments about how joinder might affect prosecutorial or defense strategy, there has been less understanding of how the “single transaction” test also expresses a fundamental commitment to justice—namely, that it is more just to prosecute together crimes that were prima facie committed as part of a single overall design. This chapter considers the rationales for joinder raised in Milošević,and highlights the risk that too forensic an understanding of the “single transaction” test will distance international criminal justice from a fully contextualized understanding of events.
The joinder of the three indictments against Milošević raised issues of procedure and fairness to the Accused, as Boas’ chapter cogently analyzes. Technically, the question is a priori one of factual and legal interpretation: Did the “same transaction” run from Croatia to Kosovo? However, the seemingly decisive character of that threshold is belied by the discretion the Chamber exercises—“crimes may be joined”1—so that although only acts forming part of a substantively unified transaction qualify for joinder, not all acts exhibiting such unity will in fact be joined. The questions therefore are also normative: Is joinder conducive to justice—and to what sort of justice? Is the “same transaction” test the right one in the first place? Why is the test what it is?
Understanding the rationale for joinder will help us better apply the test for it: The technical and normative aspects should be closely aligned in deciding whether a given joinder should be authorized, and a finding that events were part of a single transaction is in itself a principled ground, all other things being equal, for their joinder. Conversely, many of the supposed benefits of joinder will not in fact materialize if no cogent case can be made for the existence of the same transaction.
A debate on joinder necessarily implicates the meaning of a fair trial. In this context, this chapter argues for a perspective focusing on the overall interests of international criminal justice properly conceived, rather than looking at the problem primarily from the point of view of the rights of the accused. A focus on fairness as such—the starting point for Boas—risks becoming abstract. In cases such as joinder, the content of a notionally procedural right is in fact significantly more complex than for narrower questions such as the right to know the charges. What is fair to an accused is not simply something that exists in the absolute, but is also necessarily a function of considering if particular procedures are reasonable in light of the overarching goals of the trial. If one loses sight entirely of these goals, then one has nothing by which to evaluate unfairness to the accused—or for that matter, fairness.
The problem with the joinder of the Milošević indictments, then—if there was one—must be that whatever disadvantage may have been caused to the Accused was not sufficiently justified in relation to some imperative demand of the criminal process considered as a whole. In that respect, the international criminal tribunals in general and the ICTY Prosecution in particular have not done an adequate job of arguing why joinder should occur: The issue has been allowed to hinge either on considerations of expediency or on the interpretation of a formal but vague threshold, while losing sight of the fundamental justification for the practice. This in turn has made it is easier to portray joinder as unfair.
This chapter reconstructs the issue of joinder both from the point of view of the parties and though a variety of practical arguments made as to why joinder appeared desirable. It then turns to the point of view of international criminal justice more broadly to defend the single transaction test as itself following from a strong principle of justice. As we will see, there is no absolute or a priori reason that joinder should be either desirable or undesirable from the point of view of defense or prosecution. Ultimately the test for joinder should be set by an overarching attention to the goals of international criminal justice, including its potential to produce a comprehensive accounting of the events in which an accused was involved. Fairness to an accused in this context is a function of whether these goals are interpreted in ways that do not unduly interfere with the presumption of innocence and the ability of the accused to defend himself. In short, there are inherent and instrumental reasons for international tribunals to prosecute together crimes that were indeed committed as part of a single transaction. Arguments that joinder should occur for other reasons or that it should not be allowed if, despite satisfying the test, it might cause some prejudice are besides the point and should not guide judges’ decisions.
I. The Parties’ Perspectives: Strategic Calculations and Practical Arguments
Although joinders have always been sought by the Prosecution and very often resisted by the defense before the ICTY and other international criminal tribunals, there is no reason why this should always be the case. It is certainly possible to imagine circumstances in which the interests of defendants and prosecutors might reasonably lead them to agree that joinder is a worthwhile option—there have been cases in which defense counsel have not opposed motions for joinder2—or even that an accused would prefer joinder while a prosecutor opposes it. In Milošević, the general pattern more or less prevailed—joinder was an initiative of the Prosecution.
Milošević’s attitude at his trial was ambivalent, but his general strategy suggested he too accepted that the events in the former Yugoslavia had a common thread—not his crimes, but Serb victimization—and he may, all other things being equal, have preferred a single trial.* Milošević was defiant and exclaimed that “By adding up three lies, you will not get the truth. You will simply enlarge the lie itself[,]”3 yet he never specifically challenged the idea that there was a unity to the events in question—he simply disagreed with the Prosecution as to what that unity was. Milošević did not particularly object to being tried on all counts together as he saw them all as equally illegitimate.†
The Amici Curiae, reflecting their own ambiguous position, interpreted Milošević’s comments on the indictment as an instruction to the Chamber “to deal with the matter as soon as possible[.]”‡ Although on slightly different grounds than the Prosecution, the Amici argued in favor of joinder, implicitly conceding that the counts disclosed a commonality of modus operandi.
As for the Prosecution, its reasons for joinder have varied, in public and private, from high principle to strategic calculation. According to Chief Prosecutor Del Ponte, one of the reasons her team sought joinder in Milošević was “a basic principle in criminal law that an accused person has the right to be confronted immediately with all the crimes he or she is facing[.]”4 It is unclear exactly what principle Del Ponte is referring to: The right to know the charges promptly upon being arrested is quite unrelated to joinder and the organization of trials, and certainly there is no defined right to joinder, which, as we have seen, is expressly discretionary.* Del Ponte has also noted that her team needed to “buy time because the Kosovo element of the indictment was the least prepared of the three”5—although as the Prosecution led with Kosovo, it is unclear that joinder actually helped this goal.† The Prosecution’s strategy was apparently adopted at the eleventh hour, as the idea of Greater Serbia—the unifying theme around which the joinder motion was based—was not in fact present in the Kosovo indictment and was not mentioned in connection with Milošević specifically in the Bosnia and Croatia indictments.‡
Although it is inevitable and understandable that parties will think in these terms, strategic calculations will rarely provide facially valid reasons for joinder, which should be justified on grounds more principled than lack of preparation.§ There clearly were, however, at least some practical arguments in favor of joinder. One of the most debated issues arising in relation to joinder motions is the extent to which joinder would increase delays. Defendants have opposed joinder on the grounds that it would inevitably lengthen trials and thus jeopardize the right to a trial within a reasonable time.6 But expediency is also a concern for the Prosecution—not merely deference to the right of an accused, but recognition that the Prosecution has a role in safeguarding the “public interest in the efficient administration of international justice[.]”7 The Prosecution is accountable for how it spends scarce international resources, and excessive time spent on one trial could prevent it from conducting others.
The question is largely one of court management and anticipating delays, but also of understanding when they might become unacceptable. Joining indictments in a single case seems less problematic in this respect than joining cases, which almost inevitably results in longer trials than separate trials for any one individual involved.
But there are cases in which joining indictments might significantly increase delays. If indictments are joined late in the process, after the defense team has prepared for trial based on a more limited initial indictment, or even after trial has begun, joinder may substantially push back the moment an accused actually goes to trial or cause a prejudicial interruption in an ongoing proceeding.* But for indictments issued at relatively close intervals—or an accused who has only just been apprehended and finds them, as it were, all waiting for him—joinder is unlikely to be the only or principal cause of excessive delay, or indeed necessarily a cause at all. A host of other prosecutorial practices at international tribunals are more clearly associated with delays, such as issuing indictments with many overlapping or redundant counts, or calling large numbers of witnesses.† In fact, it seems quite likely not joining the Milošević indictments would have taken longer than holding a single trial, because of bottlenecks in the judicial calendar and inevitable delays between trials, the need to wait for several judgments, and repetition of time-consuming procedural steps, such as disclosure;8 separate trials would have also required establishing some common elements anew in each trial rather than synthetically in a single one. The Prosecution was therefore probably right to argue that “[t]he right of the accused to a fair and expeditious trial would be enhanced by joinder of the Indictments since he could explore the overall history in a single trial where evidence would be more likely to be first hand.”9 In the end, of course, as Boas explains, the Appeals Chamber accepted the idea that the trial would not be unduly difficult to manage, nor unduly burdensome for the Accused, while keeping the possibility of a future severance open.10
The only thing successive trials clearly do more expeditiously than a joined trial is shorten the time before a first verdict, and provide an accused with a chance to more quickly clear himself of a part of the charges against him. The Appeals Chamber, for example, was worried about the “time which necessarily elapses between hearing the evidence and the final submissions and writing the judgment.”11 But even this may or may not be something a given accused prefers, and will hinge on a variety of psychological factors and strategic motivations. In some cases, opposing a joinder may simply be an obstructionist strategy to prolong trials unnecessarily, whereas in others it might be a way for an accused convinced of his innocence to get a sense of early validation and victory. Neither seems to have been relevant in the case of Milošević. In fact, two of the Amici Curiae said that they had “no doubt … that a single trial will serve the right of the accused to a fair and expeditious trial[.]”12 A joined trial would indeed last a long time, but that is not necessarily because of joinder: any trial, or trials, covering the three indictments would have been long as, after all, Milošević was accused of a great many crimes.
Second, apart from the temporal aspect, the parties raised a number of arguments that went to the issue of fairness more generally. The Amici, for example, felt it would be of benefit to the Accused to not have to “face three separate trials, which can be a wearisome and burdensome task that can be damaging psychologically and damaging for health and a far greater burden than perhaps many people could satisfactorily deal with[.]”13 A joinder, in such a context, was the more “humane” option for the Accused.14 In response, the Trial Chamber found that “the fact that the accused would have to defend himself on the contents of three Indictments together would be onerous and prejudicial” and that this would be a reason to deny joinder.15 Although they favored joinder, the Amici acknowledged that a mega-trial would in itself be grueling, perhaps because of the uncertainty surrounding its distant outcome.16 But it is unclear why an accused would necessarily benefit from or even prefer three separate trials that—although each shorter on its own—would last longer together than a single joined one. It is worth contemplating the opposite scenario—one in which the pretrial, trial, and appeals phases of different trials overlap and run simultaneously, in ways that would surely strain the resources and patience of the Accused.
A third type of argument emphasized the needs of other participants in the trial. The Prosecution was keen to argue that joining the indictments would principally benefit witnesses and victims, as a matter of court management. Del Ponte emphasized before the Trial Chamber that “the victims and witnesses would best be protected if they were required to give evidence only once[.]”17 Nor was this only a matter of protection—it was understood that a number of witnesses were not in fact victims, but high-level insiders who might not be inclined to testify several times.* More generally, Del Ponte argued that it was in the interest of all victims, not just witnesses, to have a joint trial, as “the victims have the right to be able to have a single trial.”18
This argument is problematic, however. Partly, this is because of the characteristic way in which the concerns of victims are made decisive in a context in which the rights of the accused should be foremost†—certainly, it is curious to find arguments for joinder based both on a solicitude for a defendant’s rights and the interests of victims. But partly, it is because it is not clear that the victims from the former Yugoslavia necessarily had common views on this, or any, matter. For example, it is not obvious that victims of persecutions in Kosovo particularly wanted to tie their fate to that of, say, victims of genocide in Bosnia, or vice versa. Croat and Bosniak victims might think that the joinder would further delay a trial or confuse quite different situations; Kosovars might worry that, in relation to the massive campaign of ethnic cleansing in Bosnia—to which charges of genocide were attached—the crimes committed against them would not appear as grave, and so on.
This is speculation, of course, but so is it when such arguments are invoked by the Prosecutor to make the case for joinder: It is very easy to speak in the name of the voiceless victim. As Boas has remarked elsewhere, “it is difficult to imagine that it is possible to satisfy the legitimate needs and interests of all the victims of three conflicts over eight years, particularly in the context of a single criminal trial.”19 In fact, the sprawl induced by joinder may have worked directly against this goal: “[U]ltimately the prosecution would do little justice to victims by presenting a massive case in which it was unable to lead sufficient evidence to explain, let alone establish many of the alleged offences[.]”20
A fourth argument about joinder is a strategic calculation about evidence: a hope (or a fear) that the proof in each segment of a joined indictment will have spillover effects on the other segments, and that proof of the overall design—formally the rationale for joinder—might even serve as a substitute for proof of the particulars. In fact, this may have been the Prosecution’s agenda in seeking joinder in Milošević—that is, as a way of making sure that the indictments had a mutually reinforcing effect, and of compensating for the intrinsic deficiencies of each one taken separately. If Milošević committed crimes in Croatia and Bosnia, it might not be such a big step to believe, in the context of a joint trial, that the same person would exhibit the same sort of ruthlessness a few years later in Kosovo, or vice versa.
This danger of negative inference from the mere fact of joinder is linked to its ambiguous status: Joinder is largely seen and presented as a procedural issue, but it may also have a prejudicial substantive impact, in that it is based on a substantive claim—that these events constituted the “same transaction”—which may seem to validate a particular prosecutorial theory about those events before the trial has even begun. Procedurally, of course, there is no such inference, because it is not the actual truth but the plausibility of the claim about a single transaction that is at issue, and the formal solution is for joinder to be decided on “the basis of the factual allegations as contained in the indictment”21 alone, a point made clear by the ICTR.22
But it may be awkward, and difficult, for a chamber to consider if alleged crimes constitute part of the “same transaction” without reaching beyond the pure form of the indictments to substantive claims about the events in the former Yugoslavia. The Appeals Chamber insisted that in ruling for joinder it was merely engaging in a form of case management that would—or should—in no way prejudice a verdict.* Yet the debates before the Trial Chamber reveal that it was almost impossible not to deal, at this preliminary stage, with substantive issues—such as whether there was a plan for a Greater Serbia, which may well have gone to the heart of the trial.23†
In this sense, joinder is not neutral in its evidentiary and normative effect. In portraying certain acts—each of which is supposed to be separately amenable to trial—as part of a pattern, joinder may well make the accused seem noticeably more Machiavellian than he might otherwise appear. There is a dark, ominous tone to the suggestion that, from the first skirmishes in Croatia to the last executions of Kosovar Albanians, Milošević was animated by a single calculated idea. The huge indictment that resulted from the joinder spanned a period of almost eight years, three very distinct zones and conflicts, and dozens of counts. In this respect, joinder could have the effect of focusing the trial on the person behind the acts rather than the acts themselves, in ways that highlight the monstrosity of personal responsibility because so much seems to flow from a diabolical master plan. After all, parts of the separate indictments might have been plausibly joined to other cases—MOS, Martić, or Karadžić for example*—but once the three indictments were joined, nothing united the disparate parts of the Prosecution’s case other than the person of Milošević, the only individual to have been assigned responsibility for all three of the main theaters of atrocities in the former Yugoslavia.
Still, this is a question of degree, and it is not as if separate trials would have totally eliminated claims of connected evil: Nothing would have prevented the Prosecution from stressing this aspect in its arguments in separate trials, and one may wonder if it would make such a difference to our assessment of Milošević’s moral stature if he were to be seen merely as the perpetrator of untold atrocities in three relatively unrelated contexts. He might then appear for what, to many, he was—less of an ideologue with a master plan than a ruthless opportunist†—but that is hardly exoneration. At any rate, this was less of an issue because, as we have seen, Milošević himself thought he had done nothing wrong, did not seem to oppose the idea of contesting a unified trial narrative, and made no significant attempt to argue for separate trials.
Fifth, and finally, broader and more systemic grounds were available, which the Prosecution hinted at, although in a haphazard way: Rather than simply following an uncontextualized chronology, joinder might advance one of the purposes for which the ICTY was created by promoting international peace and security.24 According to Del Ponte, joinder might do this by making it possible to “know the truth as to the real responsibilities of the accused Milosevic, the continued criminal responsibility in time and with regard to facts without any interruption” something that would “contribute to reconciliation and peace in Yugoslavia[.]”25
Of course, it is not obvious that a single, inevitably protracted trial would do much to dispel the impression, deeply felt in the former Yugoslavia, of international justice as an ongoing circus, as described in the chapters by Trix, Swimelar, Meierhenrich, and Bieber. On the contrary, Milošević’s lingering influence in the region and the threat it arguably posed to international peace and security might have been better countered by a rapid, focused prosecution for one set of crimes; it may be, in other words, that it is the first conviction for crimes against humanity that destroys much of the aura of a politician, rather than the complete record, however desirable that record may be for other purposes.‡ Moreover, there is something problematic—at least, instrumental—about the idea of using joinder for a purpose that lies some steps removed from those of justice itself. Still, as we will see, the idea of framing issues of fairness to the accused or manageability of the trial within a vision of the overall goals of international criminal justice is definitely a step in the right direction.
All of these arguments might be good reasons for a prosecution to want joinder—but equally these might be good reasons for a defendant to want joinder, or for either to oppose it. And none of them are or should be conclusive in terms of deciding if a chamber should grant joinder—none of them satisfactorily answer that normative and policy question. The real case for joinder ultimately cannot be assessed purely from the perspectives of parties—from their strategic calculations or practical arguments—but rather on the basis of the overarching interests of international criminal justice.
II. The International Justice Perspective: A Principled Defense of the Single Transaction Test
Neither side in Milošević entirely captured why joinder might be warranted. Ultimately what was needed to answer that question was a more holistic understanding of why joinder might make sense at a deeper level from the point of view of international criminal justice per se, an issue not reducible—in this case or any other—to either a prosecutor’s or defendant’s perspective. A stronger criterion for deciding if joinder is in the interest of international criminal justice would involve a more principled defense of the standard indicated by the formal rules, namely that the crimes to be joined must have been committed as part of the same transaction. As we will see, the “same transaction” test is also based on a understanding that, for the purposes of international criminal justice’s exemplarity and social utility—as well as for the victims’ sake—events with a fundamental unity of inspiration should be tried singly.
As such, more than a purely technical evaluation is needed to understand the appropriateness of joinders. This differs slightly from Boas’s key suggestion—expressed perhaps most clearly and forcefully in his book on the trial—that international criminal trials’ “purpose is primarily forensic in nature—that is to determine the guilt or innocence of individuals for their role in atrocities.”26 This is undeniably the core, conventional goal of criminal trials, but international trials have a range of other goals, such as restoring international peace and security, establishing authoritative records, and facilitating transitional justice that make demands of their own on the trial. These broader goals set international trials apart and warrant careful attention to how these trials can pursue both their forensic goals and other social purposes. Indeed, the constant tension between a strict, forensic understanding of their mandate and one more geared toward transitional justice has yielded one of the most productive dynamics in the international tribunals’ history. Ultimately, it will prove not only difficult but dangerous for tribunals to ignore the ways in which they characterize historical events, even as they seek to focus only on issues of guilt or innocence: Tribunals assign culpability to individuals, but guilt or innocence are terms informed by the embeddedness of individual behavior within highly complex social events. Although the traditional view is that international tribunals should not engineer trials to artificially manufacture transitional justice outcomes, they should also not be oblivious to their historical and political surroundings, nor forgo obvious opportunities to render meaningfully contextualized justice.
Context matters in all criminal trials. Imagine, in the domestic setting, the trial of an individual known to have killed several people, one by one at regular intervals. It may be that each murder is entirely unrelated, but if the crimes taken together arguably disclose a particularly murderous temper or the profile of a serial killer, then prosecuting them separately might miss a crucial dimension both of the defendant’s culpability and of what has actually happened. In the international context, these risks are even greater. Consider a classic international example a contrario in which the unity of crimes was very significant. Suppose the defendants at Nuremberg had been tried separately for each act of aggression—the Anschluss, the dismemberment of Czechoslovakia, the invasions of Poland, Belgium, France, and so on. There might have been practical reasons for doing so—such as concern that prosecuting all these crimes together would delay judgment and render the trial unmanageable—but a crucial dimension of Nazism as a fundamentally aggressive, militaristic, and expansionist ideology would have been lost: The accused would have appeared as repeat offenders rather than as architects of a systematic plan to dominate Europe. The Nuremberg trial uniquely highlighted this dimension of the regime, and made a decisive contribution to international and transitional justice as a result.
This same risk obtained in the Milošević trial. Let us imagine, for example, that the Prosecutor, in an effort to obtain a quick conviction, had decided to indict Milošević only for the events in Kosovo, and even there only for one particular massacre. The trial would have proceeded swiftly and, from a purely forensic point of view might have been impeccable, restricting itself to the only question actually asked, namely whether Milošević was legally responsible for these particular acts. However, there would have been a broad outcry that such expediency came at the price of ignoring or downplaying the global picture and that, under the pretext of establishing Milošević’s guilt for some events, it failed to call him to account for others.* Alleged victims of Milošević in Bosnia and Croatia would have claimed that they were being shortchanged, not least as offenses committed against them had occurred earlier, and they had been waiting for justice for so long.
The very fact of prioritizing certain indictments—although done on impeccably forensic grounds—would inevitably have been interpreted as an ideological reading of the conflict, which would have questioned the impartiality of the Prosecution; at least joinder puts all crimes in common perspective, treating them on an equal footing. In our hypothetical case, there would have been nothing the Chamber could do—it is, after all, the Prosecutor alone who brings charges—whereas in Milošević the Trial and Appeals Chambers had the issue before them. Still the example makes clear that an exclusive focus on purely forensic justice risks sacrificing the point of the noun for the sake of the adjective. Perhaps the Appeal Chamber had this broader conception of justice in mind when it ordered joinder.
The situation concerning the joinder of indictments is more subtle than our hypothetical example, but it raises similar problems about the balance between forensic and what we might call comprehensive justice. As Williamson’s and Bassiouni’s chapters imply, once the Kosovo indictment issued, it was all but inevitable that the other two indictments would be brought, and the only question was whether prosecuting them separately might create a risk that significant elements of Milošević’s overall guilt would be missed or distorted. In this respect, it often seemed that the single transaction test was only the incidental legal and factual battleground for debates whose real stakes played out over trial manageability and delays.
But the notion of a single transaction should not simply be seen as a pretext for a prosecution to do something that it fundamentally wants to do for other reasons, or as a way to minimize curtailment of an accused’s rights. Rather the idea of the same transaction in itself encapsulates a notion of justice, and a simple, intuitive one at that: it is better to try together acts that are fundamentally related, just as it would be wrong to try together acts that were indeed unrelated. In this respect, the single most significant reason for prosecuting certain crimes jointly is not that it saves time or that it is fair to an accused or less burdensome on victims in an abstract way, but that the crimes do indeed display a historically significant level of unity making it appropriate and desirable to try them together.27 The formal threshold for allowing joinder, in other words, is also the best argument in favor of joinder. If there is indeed a single transaction, then it becomes much harder to argue that the rights of the defense are being impinged even if the resulting trial is longer, as a very strong argument for a single trial exists.* The converse is, obviously, also true. Of course, these are matters on which prosecution and defense may well disagree, but this does not change the fact that it is on such grounds that the overall correctness of joinder should ultimately be assessed.
This reasoning is general, but applies to international trials with an even greater sense of urgency: Adequately and accurately framing the contextual dimension of a complex set of crimes is, if anything, more important for ascertaining individual guilt because evidence of planning or systematicity is essential to many international offenses, including genocide, persecution, crimes against humanity, and crimes committed under JCE theories.† Thus joinder may make sense from a forensic point of view because it helps highlight a certain pattern, legally relevant motive, or a modus operandi.
But even more important, joinder speaks to the need to ensure that international criminal justice not reduce all history and politics to forensics. As our thought experiments concerning Nuremberg and Milošević suggest, highlighting links between different crimes and indictments may yield profound lessons for our understanding of the processes involved. Joinder has an impact on the ability of international tribunals to render justice, in the fundamental sense of doing justice to what actually happened. Beyond criminal justice lies justice tout court, and the struggles of international tribunals to produce not only verdicts about individuals but also more general narratives of the broader events involved.28 Such reasons might be mitigated by countervailing factors, but they are not reducible to the merely forensic, and—at least given the broader purposes we evidently do attach to the project of international criminal justice—should feature prominently in any defensible theory of joinder.
This aspiration to elevate international criminal justice above a narrowly understood forensic approach may explain the fact that both Prosecution and Appeals Chamber distanced themselves from a narrow, clinical reading of “transaction,” relying more on the notion of a “common scheme, strategy or plan,”29 as something that could unfold over time. This was based on a largely correct technical interpretation of Rule 49, according to which acts need not have been committed “together” in time (as the Trial Chamber had understood it), but should, when “considered together as a whole[,]” form part of the same transaction.* The Appeals Chamber accepted the idea that events forming one transaction could include a common scheme, strategy, or plan with a long-term aim that unfolded for the greatest part of a decade; the forcible removal of the non-Serb civilian population from areas over which the Serbian authorities wished to maintain or establish control was, then, such a scheme.
We need not enter into the details of whether Milošević’s alleged crimes actually displayed that unity. The point is that this approach to joinder yielded a factually contestable claim that raised some of the very questions that any international trial of Milošević would have to raise to be meaningful. The rationale for joinder was coherent: In effect, it equated the attempt to extend Serbian sovereignty over areas of Bosnia and Croatia by criminal means with the attempt to maintain Serbian sovereignty over Kosovo by similar means. The Trial Chamber—focused on the passage of time and the use of proxy forces—did not accept that argument, but the Appeals Chamber—having loosened the test—did, finding that in all cases “the accused is alleged to have acted in order to establish or maintain Serbian control over areas which were or were once part of the former Yugoslavia.”†
Implicitly, the two Chambers differed not only in their formal test but in their approach to international law: For the Appeals Chamber, the fact that some actions took place within Serbia, and others across an international frontier, seemed less important than that all three episodes were part of an all-too-familiar pattern of violence against minorities in the former Yugoslavia. In emphasizing this unity, the Prosecution made, and the Appeals Chamber accepted, a characteristically cosmopolitan claim, one that stressed the commonality of criminal inspiration and the consistently gruesome results. The Trial Chamber, by contrast, had exhibited a more traditional and formal internationalism, making much of the fact that some events were international whereas others were, strictly speaking, domestic—but in doing so forwent the opportunity to make the trial responsive to its larger purposes.
In practice, joining the indictments had the strategic and procedural effect of setting the bar for the Prosecution quite high, because it did in fact portray Milošević’s actions from the early to the late 1990s as part of a single, broad criminal strategy. Perhaps the Prosecution could have made a better case, for example, by not referring to Greater Serbia in relation to Kosovo—an expression that made the Belgrade-based Amicus Curiae, Branislav Tapušković, understandably apoplectic.30 But that is a critique of the Prosecution’s strategic choices and the ultimate strength of the evidence, not of joinder as such: the fact that the phrase was not quite apt does not mean that there was not a certain unity behind Milošević’s actions (or, of course, that there was no such plan in relation to other areas).*
Claims about this unity are contestable, but deciding upon their truth or falsehood, rather than eliding them from the juridical process for the sake of expediency, is of the essence of what it means to do justice after episodes of complex violence. Joinder may achieve all the other things claimed for it—greater speed, fewer constraints on victims, and so forth—but it is not justified by these things. There is no substitute for joinder actually being based on a credible, contestable narrative of what has gone on. If such a narrative is available and persuasive on its face—whether or not it proves true following a trial—then joinder seems inherently justified, especially where the challenges it creates for an accused are more than compensated by the benefits of a fuller and more responsive engagement with the process of doing justice.† In fact, confronted with a situation that displays a high level of factual unity, it is probably only in rare instances that the judges should exercise their discretion to not allow a joinder. The fundamental need to present certain criminal episodes for what they are—whatever that proves to be—should trump, or at least weigh more heavily than, whatever other procedural or strategic complications joined trials may engender.
Conclusion: The Limits of Single Transaction Analysis and Complex Historical Events
Although perhaps strategically sound when it was taken, the decision to seek joinder in the case of Milošević of course proved, in retrospect, a mistake. A single trial on one indictment might conceivably have been concluded before Milošević’s death, giving the Prosecution—or Milošević—at least one chance at winning a particularly important case. A conviction, if that had resulted, could have provided a sense of justice to at least some of the victims—most likely those from Kosovo*—and indirect gratification for victims in other theaters, in that Milošević would suffer the stigma of having been condemned for some international offenses, which would have made the victims’ case seem more historically credible. In many ways, the pursuit of a mega-trial was consonant with a broad prosecutorial strategy that emphasized exhaustive coverage over quick convictions, sometimes at the cost of obtaining neither.† Still, blaming joinder—and implicitly, therefore, the Prosecution and Chambers—for the premature termination of the Milošević trial, as Boas seems to do, is a bit unfair. Given the sheer uncertainty of such events, prosecutors are probably well-advised to develop their strategies on the basis of more fundamental considerations, and judges must respond accordingly.
Still, despite the fact that a principled argument could be made for prosecuting jointly all the crimes of which Milošević was accused based on the single transaction standard—and that reliance on this standard is preferable to the casuistry of costs and benefits—joinder does raise questions about the limits of international criminal law, or at least the awkwardness of dealing with mass political crimes using a language that is still by and large borrowed from domestic criminal law. What constitutes a “transaction” is hardly a settled term of art: Although the parties and Court suggested several meanings of the term and some case law,‡ these inevitably arose in municipal contexts that bore little relation to the sort of complex sequence of events alleged in Milošević.
At times, the Tribunal’s reasoning on the meaning of “transaction” in Milošević seemed to hinge on such minute and fortuitous questions of statutory interpretation—the discrepancy between the French and the English versions, for example—as to risk missing the issues of principle. To describe almost a decade of Milošević’s leadership of Serbia and Yugoslavia and criminal acts committed by his regime as part of a “transaction”—a word with origins in private law and suggestion of an “exchange”—was bound to be reductive, and thus bound to fail in rendering the enormity of what went on, its historicity and its complexity.
Indeed, perhaps the problem is the focus on the notion of transaction, rather than on whether Milošević’s conduct exhibited a fundamental unity more generally. The danger is that a notion introduced into the Rules by the judges and with no significant pedigree in the Statute or ICL generally becomes the litmus test for deciding if indictments should be joined, to the detriment of a more meaningful engagement with the substantive rationale. The Appeal Chamber’s interpretation, requiring less factual connection, was an improvement, but even so, if Prelec is right, the idea of a “plan”—even one whose parameters changed with time—might have proved a semantic stretch. This need not always be the case, and there are indeed examples of archetypal plans—most notoriously the Wannsee conference. But international criminal justice also has a long record of yielding to the temptation of seeing a “master plan,” from the very broad-ranging accusations of conspiracy to wage war raised in the Tokyo trials to the failed suggestion that the Rwandan military was involved in a conspiracy to commit genocide prior to 1994.31
Did Milošević have an actual plan in the early 1990s to create a Greater Serbia or annihilate non-Serb minorities? There is a real risk that this notion claims too much. Milošević, like most significant actors in the breakup of Yugoslavia, knew that the issue of nationalism would have to be dealt with, and, when the time came, certainly had no doubt about whose side he was on. But his views about what to do were inevitably shaped by evolving events, and he could not have predicted the entire chain of events leading to 1999. The alternative view is that Milošević probably had less of a plan than he had certain views about the role he might play in what came after Yugoslavia, and ideas about the nature of nationhood and Serb identity.* In the process, he responded to events with the predictable ruthlessness of someone whose appetite for power was immense, whose political views came to be predicated to a large extent on ethnic nationalism, and who had a propensity to think that the ends justified the means—a propensity Prelec describes in his chapter. This hardly makes Milošević’s behavior less grave or his actions more justifiable; in thinking about joinder, it does not impugn the fundamental unity of his behavior across the decade. It does, however, betray the inadequacy and reductiveness of some of the terms and tropes used by ICL, which encouraged the Prosecution to ascribe an almost conspiratorial single-mindedness to the complex strategies of a viscerally political animal such as Milošević, vying for domination and survival amid the rapidly changing landscape of Yugoslavia’s collapsing structures.
In thinking about joinder, it may be that, while retaining the single transaction standard as a guiding thread, international tribunals such as the ICTY should more explicitly consider the interests of justice. The Chamber’s discretion, foregrounding as it does issues of forensic practicability and convenience, should be supplemented by a more explicit effort to account for the ramifications of joinder on the broader goals of international justice: fairness to various local constituencies, ability to develop a comprehensive record, and consequences for international peace and security.*
The tendency to avoid—at least explicitly—deeper normative engagement with joinder’s effects through wordplay surrounding the notion of a “single transaction” is not an accident. ICL is a method for dividing complex realities into the innocent and the criminals, and for treating the latter as uniquely guilty of committing atrocities, regardless of context, structure, or motives. What international criminal justice as a project does not want to do, precisely, is to indict certain ideas and politics, as opposed to certain acts committed by individuals. To do otherwise would risk weakening the precarious individual agency so central to ICL’s functioning. Milošević was a criminal entrepreneur who provoked the violent death of tens of thousands, but in legal terms, his particular form of post-Communist nationalism was merely a motive or an element of context. ICL has nothing to say about ethnic nationalism as such, but instead insists that such motives are inconsequential in relation to the sheer personal evil of Milošević, at least in relation to the fact that he committed the crimes he did. Tropes and doctrines of “conspiracy,” “single transaction,” and “plan” reinforce this sense of a dark but individual scheme, rather than, say, examining the complicity of broader populations and the role of ethno-politics.
The joinder of the Milošević indictments was entirely justifiable as long as it was based on a plausible view of the unity of the criminal allegations against him, even though it may well have had the unfortunate effect of depriving the international community of a verdict. But the current transactional test to evaluate the appropriateness of joinder—whatever its forensic value—distracts the law, and us, from the fundamental unity behind Milošević’s alleged crimes, which was, if anything, not only temporal or even personal but, at its root, ideological and political.