Open Society Justice Initiative*
Professionals working inside international courts have a tendency to operate in a bubble, so focused on the tasks at hand and the enormous weight of their mandates that they are seemingly oblivious to outside activities. But although the Prosecution naturally played the central part in addressing the challenges of investigation, indictment, and trial, outside actors played a role in the preparatory work done for Milošević. This chapter considers perceptions of the Milošević trial outside the internal workings of the Prosecution, and provides a limited critique of the Prosecutor during the trial.
Carla Del Ponte provides a fascinating insider’s view of the dynamics at work within the Office of the Prosecution before and during the Milošević trial. Without question, each of the chief prosecutors of the ICTY has left a unique and indelible mark on the Tribunal, and Del Ponte, by far the longest-serving, made some of the most groundbreaking decisions.† It was during her tenure that many of the highest level accused went on trial, and when most of the arrests and transfers to the Tribunal were secured. Although the Prosecution’s initial investigation of Milošević and the Kosovo indictment (which Williamson discusses in his chapter) preceded her tenure, the Bosnia and Croatia indictments and the whole trial took place under her supervision. As a consequence, Del Ponte’s view from inside and opinions are of great historical interest.
The subtitle of her chapter—“Indictment Correct, Trial Impossible”—is indicative of what’s to come: her conclusion that the Prosecution put forward the best possible indictment, but issues outside her office’s control—unmanageable rules of procedure and evidence, poor decisions by the Chamber, and Milošević’s ill health—resulted in a process unfair to all. Indeed, Del Ponte insists that allowing Milošević broad leverage to represent himself, and to put on a political rather than strictly legal defense, resulted in a trial that was unfair even to him, however much he preferred it.
At times reading Del Ponte’s informative chapter, one simply cannot help but wonder: “What if?” What if the Chief Prosecutor had not put in place the necessary ingredients to ensure that, in the unlikely event Milošević—who was still president of the FRY—was arrested and transferred to the ICTY for trial, the evidence in the Prosecution’s possession would be strong enough to prove the sweeping charges against him? What if the indictments had never been joined and Milošević had been tried, and perhaps convicted, on the Kosovo charges alone prior to his death? Would there have been a subsequent trial on the other charges? Would the victimized community have gained more satisfaction? What if Del Ponte had not been convinced that the Prosecution would eventually gain access to Belgrade and would find evidence that Milošević had materially supported Mladić and Karadžić in the genocide at Srebrenica? Would genocide have been omitted from the Bosnia indictment, and if so, what would the repercussions of that have been?
These are speculative questions, but if anyone is well-positioned to consider them, it is Del Ponte, as they arise from the choices and the challenges she confronted throughout the years of preparation and trial. Del Ponte catalogues a range of difficulties faced by her office in investigating serious and complex allegations of genocide, crimes against humanity, and war crimes. The task involved balancing diplomacy with highly sensitive work, including recruiting insider witnesses, excavating graves, and collecting critical linkage evidence. The atrocity sites in Bosnia, Croatia, and Kosovo presented logistical and organizational challenges of their own, but much of this work needed to be done in Serbia proper, and initially her prosecution and investigation teams could not enter that country and did not have access to its archives; requests for cooperation fell upon deafears. Her chapter therefore illuminates the importance of international prosecutors being able to have discretion to use both carrots and sticks in performing their mandates, tools common in many domestic jurisdictions. For instance, Del Ponte highlights the value of plea agreements—and implicitly of the threat of lengthy prison sentences—in leveraging testimony from insider witnesses such as Babić.*
But although some of these tools were wielded or even crafted by the Prosecution, not all of them were; outside actors played a role in the successes Del Ponte ascribes to the preparatory work done for Milošević. Professionals working inside international courts have a tendency to operate in a bubble, so focused on the tasks at hand and the enormous weight of their mandates that they are seemingly oblivious to outside activities. Perhaps for this reason, Del Ponte’s account does not give sufficient credit to external experts and professionals when she laments that “[o]utside the Office of the Prosecutor few knew or understood the challenges that arose during the preparations of the Milošević trial[.]”1 Although outsiders indeed should not be privy to the Prosecution’s confidential internal decision-making processes, there were nonetheless sophisticated international justice and human rights lawyers and political officers working parallel to the Prosecution’s efforts who did understand the complexities involved and who worked behind the scenes and in foreign capitals to facilitate the efforts of the Tribunal. Many were working on securing accountability for the highest-level perpetrators well before Del Ponte entered the scene; these share some credit for Milošević’s ultimate downfall, arrest, and transfer, and many then worked on outreach, communications, and political messaging in the region before and during the trial.* Likewise, Del Ponte’s success in securing cooperation from Serbia was at least as much a function of states’ diplomatic pressure and leverage on Belgrade as it was the Prosecution’s own efforts.
Within the institutional confines of the ICTY, by contrast, Del Ponte was at times arguably too attentive to the role of others. She writes that she felt “duty-bound” to include a genocide charge in the Bosnia indictment once a prima facie case was made, as it was the judges’ responsibility to determine if genocide has indeed been committed. This begs the question: Should a prosecutor throw in all possible charges and let the judges sort them out, or is it a prosecutor’s job to bring tight indictments that take into account the broader contextual issues—length of trial, impact on victim-witnesses, and financial outlays? In part, Del Ponte’s view arises out of her Swiss civil law training and perspective—a particularly consequential example of a recurrent dilemma that has never been fully satisfied by a tribunal that incorporates competing processes and aims from both the civil and common law systems.
Yet however deferential she may have felt toward the judges when it came to deciding about genocide, Del Ponte still lays many of the problems in the Milošević trial at their feet. This is unsurprising, of course—after all, if at the time she had considered those problems to be the Prosecution’s fault, she could have fixed them and sped up the trial. Del Ponte complains that the Tribunal needs more experienced trial judges, and judges steeped in international criminal law procedure, yet Richard May was an experienced criminal trial judge from Britain who had already served at the ICTY for six years by the time he began presiding over the Milošević trial. His successor, Patrick Robinson, had likewise served as a judge at the Tribunal for six years by the time he replaced May. Del Ponte may not like their decisions, but both were steeped in international criminal law practice and procedure by the time they presided over the Milošević trial.†
Implicitly, however—and even more than experience—Del Ponte suggests it was the judges’ lack of will to use their inherent powers to improve the process, particularly regarding self-representation, that was at the root of the trial’s problems. The Trial Chamber was overly solicitous of Milošević, at the expense of the victims, something Del Ponte bitterly complains about and that is commonly heard in the former Yugoslavia as well. The judges should have intervened far more often to halt Milošević’s disruptive antics and prevent him from using the courtroom as a political stage. Often, he was not defending himself, but simply posturing and bullying. Yet because he was representing himself in the courtroom, Milošević was given unusually broad scope to pursue his own strategy, which resulted in his intimidating and demoralizing witnesses—even while he had, according to Del Ponte, some 40 lawyers working for him outside the courtroom, though Anoya implies the number working in The Hague, at least, was much lower.*
Continuing her critique of the Chamber, Del Ponte lays considerable weight on the common-law proclivities of the ICTY—something partly attributable to the judges, because they wrote and have continually amended the RPE†—as a key contributing factor both in the Milošević trial’s length and in the overly broad license Milošević secured for himself to hijack the proceedings. Yet it is not clear that the common law is really to blame here—or at least it is not clear that the civil law (with which Del Ponte is more comfortable) is likely to do any better. In the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Duch trial against a former Khmer Rouge torturer used a thoroughly civil law system—with investigating judges and civil law rules—and yet lasted nearly a year, even though the single mid-level accused had pleaded guilty to war crimes and crimes against humanity;‡ the next ECCC trial, against four senior leaders of the Khmer Rouge, is expected to last at least three years. As Del Ponte rightly insists, no trial should last for four years—but the Prosecution and Chambers, as well as Registry,§ share responsibility for extraordinarily lengthy trials.
Indeed, the single most important contributor to the length of the trial was, in a sense, a joint error by the Prosecution and Chambers. It was the Prosecution that requested that all three cases be joined into a single trial, a request ultimately upheld by the Appeals Chamber. As Boas notes, this produced a huge and unwieldy trial, and it could have been otherwise: Had Milošević faced a first trial just on the Kosovo charges, that could have been relatively quick and easy, and considering the evidence actually given in the trial, most likely would have resulted in a conviction at least on some charges.2 But because all three cases were joined, judgment could be rendered only after the full trial, and the victims of Milošević’s crimes were denied justice when he died before his lengthy four-year trial ended. Despite health concerns during his trial, his death was not predicted, but the length of the trial, once it included all three indictments, could have been anticipated. It is true that the Appeals Chamber ordered the joinder, but it was the Prosecution that requested it and filed an appeal when the Trial Chamber initially denied joinder for Kosovo. It is therefore notable that Del Ponte all but ignores joinder’s effect on the length of the trial*—for her, its negative impact was on the sequencing, not the length.
The Prosecutor gamely admits, however, that her office made a few strategic errors in the case. In her typical no-nonsense style, she laments that, in the early days of the trial, instead of showing viewers evidence of Milošević’s own responsibility, her team put on crime-base witnesses first—“a series of victims, some of them barely literate peasants and working people who were utterly disoriented.” As a technical description, this was sometimes accurate—a number of other chapters describe much the same thing.† Still, this is cringe-inducing stuff, and telling about how the victims’ own self-described representative perceived them. Yet one might see these same witnesses as powerful and compelling precisely because of the power dynamics and literary discrepancies in the courtroom, and the leeway the judges allowed to the Accused: What courage these survivors had to go into an intimidating and foreign courtroom in a strange country and face this powerful leader who had ruined their lives. The situation also echoed the earliest trials before the Tribunal, when savvy and sophisticated prosecutors plowed over defense attorneys who did not have expertise in international law or familiarity with common law adversarial trial norms.
Still, it is unclear just how much of Milošević’s dominance of the courtroom or continued popularity among Serbs had to do with rustic witnesses or even with the Prosecution’s self-described strategic error of leading with victims rather than with evidence of Milošević’s own responsibility. Although it is possible that it would have been better to lead with linkage evidence demonstrating Milošević’s guilt, it is hard to believe that Milošević would not still have grandstanded and manipulated the process. Here too, of course, the trial has had a real impact on the institution: As Anoya discusses, the failure of the Milošević bench to adequately control its Accused inside the courtroom helped lead to better rules governing self-represented accused and to more assertive practices in some chambers‡ of the very kind Del Ponte implicitly wanted the Milošević Chamber to apply.
Del Ponte’s fascinating account of hostile witnesses has important implications for other tribunals in similar situations. The difficulty in knowing what hostile witnesses will say at the ICTY is being replicated at the ICC, where the same issues also arise in discussions about cross-examining victim-witnesses. It is instructive that the main lesson Del Ponte draws from this practice after so many years at the ICTY is that “rules must be established to offer special protection for victims during cross-examination[.]”3 The ICC practices are directly contrary to this lesson, and one trial chamber has already forbidden prosecutors and defense attorneys from proofing witnesses.4
The most compelling reading in Del Ponte’s chapter is the section discussing Milošević’s decision to represent himself, “to present a political defense, to speak directly to his constituents in Serbia, to exploit each trial day … as an opportunity for political diatribe. It did not[,]” she concludes, “have to be this way.”5 She implies that the ICTY handed Milošević a soapbox upon which to continue his hate-mongering. This is a common enough critique of the trial and the judges’ management of it—several of the other authors make the same point, including Boas—but Del Ponte goes further, arguing that in affording him such wide latitude to present a political instead of legal defense, the judges allowed Milošević to “vitiate[] his right to a fair trial.”6
This is a tremendously far-reaching claim, because the primary underpinnings of the ICTY’s legitimacy is the right to a fair trial, and if the Tribunal violated this right by bending over backward to accommodate Milošević, that will taint the entire institution. Clearly, the judges had to strike a difficult balance between defense rights and victims’ rights, and had to know where to draw the line between affording the self-representing accused sufficient latitude to defend himself and limiting that leeway to ensure that he was actually advancing a meaningful legal defense.
Milošević was unquestionably a dominant presence in the courtroom, and as Del Ponte notes, his skilful cross-examination techniques ranged from soft to aggressive, depending on his opponent and the particular aspect of the testimony he was trying to get the witness to undermine, retract, or equivocate on. He was a master manipulator and highly accomplished politician, and, as noted above, many observers found it heart-wrenching to watch a still powerful and popular former leader rip intimidated survivors to shreds. Aside from having a former president essentially interrogate his former constituents-cum-victims—instead of, for example, the Trial Chamber appointing an interlocutor to ask the questions Milošević wanted to pose—there was a chilling factor present in the courtroom: Milošević continued to wield a great deal of power back in the region, and as Del Ponte points out, witnesses were “legitimately concerned that they might face repercussions for their testimony.”7
The Prosecutor also highlights what she saw as the utter ineffectiveness of the Amici Curiae—whose appointment she thinks resulted in “a bastardization”8* of legitimate Amici processes—not only because Milošević wasted enormous amounts of courtroom time on issues irrelevant to presenting a defense, but also because the Prosecution had no effective interlocutor to stipulate undisputed facts or handle common technical issues, thus requiring the trial judge to handle, in open court, such mundane issues as the minutiae of Milošević’s treatment in the detention unit. Even when the Amici were appointed as actual defense counsel, Milošević’s largely successful resistance to their participation meant that they still could not effectively serve these functions.
Finally, in addition to a politicized defense, intimidation of witnesses, and marginalization of actors who normally populate the interactive trial process, Milošević exercised one further and decisive influence over the proceedings: Del Ponte emphasizes that Milošević’s illness—but also his covert use of drugs to manipulate the effects of his blood pressure medication, allowing him to control the speed of his trial—was an element out of her control. This is, in some sense, undeniable—and was in part a function of what she sees as the judges’ deference to Milošević, as they approved the regime put in place by the Registry that allowed him with relatively little oversight to receive visitors.
Yet the conclusion she draws—the “what if” she herself introduces—is surprising: Del Ponte suggests that “instead of four years, [the trial] could have been finished in one, if we could have worked five days a week.”9 If such a claim is indeed true—and it is by no means clear it is—then tens of millions, perhaps over a hundred million dollars, were wasted by not better controlling this one defendant’s ability to manipulate his medication. Still, if the Prosecution truly believed it was possible to hold this complex genocide and crimes against humanity trial within a year, that could explain its insistence—her insistence—on going to trial for all three indictments instead of for Kosovo alone.
Whatever the effects of Milošević’s illness, based on experience in comparable trials involving complex cases and evolving circumstances, we should be skeptical about the claim that the Milošević trial could have been conducted in a year. Indeed, the Milošević trial was frequently prolonged to allow the Prosecution to go to Belgrade to obtain new evidence and interview new witnesses as they became available in the changing political climate. Other evidence was discovered after Milošević died. What would the impact have been if the Mladić diaries had been available during trial? Who knew during the Prosecution phase that the Škorpioni video existed? No doubt, other inculpatory and exculpatory evidence will come to light as well.
Theoretically, yes, even complex atrocity trials should not last for several years, and we may hope that soon war crimes tribunals will be able to conduct complex trials in shorter times. But in fact, so far, other leadership trials have not been quick either: For example, former Liberian president Charles Taylor went on trial before the Special Court for Sierra Leone in January 2008, and the trial did not end until March 2011, with judgment in 2012, despite having no genocide charges, no health delays, and no self-representation issues. And, as we have already seen, trials turn out to be painfully long whether one adopts a civil, common, or hybrid procedure.
Del Ponte’s concludes her observations by returning to her subtitle: The indictment was correct but the trial process was impossible. Whether or not one agrees with her assessment of the indictment or the trial, it is difficult not to respect her passion, her frustration with the process, and her commitment to try to provide a measure of justice to the victims.
It is not yet clear what the particular legacy of Del Ponte’s approach to Milošević will be. In her chapter, Hartmann expresses strong doubts that the post–Del Ponte Prosecution has preserved a coherent theory and body of evidence in related trials of the Belgrade leadership. That may or may not be, but another part of Del Ponte’s, and the Tribunal’s, legacy is institutional and strategic. The Milošević trial demonstrated the opportunities and dangers of self-representation, for example, and chambers are now more assertive in policing self-representing accused.* Other aspects of that legacy are still in flux: After Karadžić’s arrest, there were calls to reduce the scope of charges—a clear response to the sprawl of Milošević—but also countervailing demands to preserve a broad array of charges in order to tell the most comprehensive story and validate the experience of victims. Perhaps we will know we have learned the lessons of the Milošević trial when we see the indictment for a trial such as Karadžić or Mladić severed, with the Chamber proceeding to judgment solely on a discreet set of charges—in those cases, say, just the Srebrenica charges—and only later resume trial on the other charges.* Just such an approach—at least one judgment on limited charges against Milošević—would have provided more justice than the all-and-then-nothing approach that, as it turned out, Del Ponte’s prosecutors pursued, Milošević exploited, and the Chamber allowed. Still, as Nielsen points out in this volume and others point out elsewhere, there are many lessons to be learned from the Milošević trial, despite its failures and grossly unsatisfactory ending.10