The Rule 98bis Decision in Milošević
London School of Economics and Political Science*
What is the meaning of the 2004 Decision on the Motion for Judgment of Acquittal in the Milošević Trial? Drawing on Jürgen Habermas’ procedural theory of law, this chapter argues that the Decision was critical to re-legitimating the contentious proceedings. The value of the Decision lies in having eschewed an incontrovertible verdict, and in drawing our attention to the complexity of the ICTY’s procedural and substantive law. By having reined in, if only temporarily, the theater of international justice that Milošević had become, the Trial Chamber’s preliminary assessment of the Prosecution’s case bespeaks international adjudication at its best.
Late in the spring of 2004, the Milošević Trial Chamber took stock of the evidence the Prosecution had marshaled in the trial, in its Rule 98bis Decision on the Motion for Judgment of Acquittal.1 By that time, five years had passed since the initial indictment, a little less than three years since the FRY had transferred the world’s most infamous fugitive to the ICTY. What are we to make of this document? What difference, if any, did it make to the courtroom drama unfolding in The Hague?
If the Milošević trial had run its course to completion, little mention would be made of its Rule 98bis Decision. Yet because the proceedings terminated prematurely with the death of the defendant, an unusual amount of attention has been paid to this 140-page document. For some observers, the Decision constitutes what Waters calls an “ersatz judgment”2 that in retrospect became hugely significant in the absence of a final judgment, “deployed to tell a story about Milošević’s guilt or innocence and craft a final judgment in the eyes of the world, if not in law.”3
It would certainly be wrong to liken the Milošević Trial Chamber’s Decision to a legal judgment: The Decision was not intended to be a substitution for a judgment, and it must not be read as such in retrospect. The purpose of Rule 98bis is radically different from the rules and procedures of evidence governing a final verdict. As Waters writes, “Apart from its discussions of legal standards, not a single piece of factual evidence deployed in the Decision can be confidently assigned a definitive value, except those the Chamber rejected as insufficient.”4 Still, although for Waters this makes the Decision radically indeterminate, it does not mean the Rule 98bis Decision is insignificant. Quite the contrary—for, at the time the Decision was announced, the Milošević trial was on the precipice of legitimacy, and the judges seized, perhaps unwittingly, the last opportunity that presented itself to them.
The value of the Decision lies in having eschewed an incontrovertible verdict, and in having drawn attention to the complexity of the ICTY’s procedural and substantive law. In many respects, the Trial Chamber’s preliminary assessment of the Prosecution’s case bespeaks international adjudication at its best. Instead of offering the typical ICTY fare in Rule 98bis decisions of “brief rejections without much reasoning or analysis[,]”5 Judge Robinson and his colleagues produced an extensive, exhaustive discussion. By drawing attention to key failings of all parties to the trial, the Decision established a robust judicial standard by which to adjudicate the reality of international crimes.
This didactic juncture in the trial is noteworthy because it marked the Trial Chamber’s successful attempt at “demonstrating the justice of its own process[,]”6 and illuminating the admittedly limited function of international law in times of conflict. By navigating carefully between facts and norms, the Chamber lent a modicum of legitimating force to adjudication at the ICTY. When viewed through the lens of the philosopher Jürgen Habermas’ procedural theory of law, the very fact that the Decision was not ultimately determinate presented a valuable opportunity for the Tribunal as an institution. The Milošević Chamber, “by meeting its need for legitimation with the help of the productive force of communication,” took advantage “of a permanent risk of dissensus to spur on legally institutionalized public discourses.”7
Instead of filtering history and memory into the courtroom, as some proponents of so-called didactic trials—what Waters terms the authoritative narrative theory of ICL—advocate, the ICTY trial judges filtered more law into it. They reminded all parties to the proceedings of the core function of international trials, which Hannah Arendt once described as the imperative “to weigh the charges brought against the accused.”8 The dry tone of the Decision, and its overall careful and comprehensive parsing of both Prosecution and Defense positions, proved an important counterpoint to the spectacle of international justice that the proceedings against Milošević had become by that stage. It restored, in more respects than one, the proper decorum of the ICTY courtroom, and laid the foundations for a didactic courtroom—a courtroom in which international procedural justice is seen to be done.
The Decision thus marks a critical juncture in the development of the Milošević proceedings. It is a valuable document that sheds important light on the quality of international adjudication. Indeed, the judges’ mostly careful reasoning at this interim stage of the proceedings largely succeeded, if only temporarily, in turning Courtroom I from a theater of international justice back into a court of international justice.
As international trials go, the Milošević proceedings were imbued with drama from beginning to end. The high profile of the Accused assured this, but so did his controversial insistence on self-representation, his continued refusal to concede the Tribunal’s authority, and his prolonged ill-health and sudden demise. To the displeasure of Judge May, who presided over the trial until his retirement in May 2004, just before the Decision was issued, Milošević sought to delay, obstruct, and ridicule international justice at every turn. As one of May’s colleagues described it:
Milosevic constantly interrupted counsel and witnesses; corrected interpreters; defied authority of the tribunal or the judges; refused to comply with orders to disclose materials, file witness lists or produce experts; eschewed written submissions, insisting that only oral evidence was appropriate in a public trial; required for health reasons a minimal courtroom schedule (four hours a day, three days a week); ignored repeated admonitions by judges not to ask leading questions; sought to introduce irrelevant information into the record; and played blackmail with the court by getting defense witnesses to refuse to appear if he could not examine them himself.9
The Prosecution also struggled with Milošević’s self-serving performances on the international legal stage. In her memoirs, Del Ponte described the beginning of the Defense phase, shortly after the Rule 98bis Decision:
… Courtroom I sprang to life once again as Milosevic began presenting his defense case. True to form, he mounted no legal defense in the conventional sense. Rather, he chose to dabble in politics and to make speeches to his true believers in Serbia and elsewhere about his interpretation of Yugoslavia’s demise.10
And yet it was not only Milošević who contributed to the theater of international justice in Courtroom I. Del Ponte’s Prosecution displayed a penchant for overreach and enabled some of the pathologies that in the minds of many have become synonymous with the Milošević trial. As the Introduction discusses, foremost on the list of pathologies is the mega-case that the Prosecution insisted on bringing against the Accused: 66 separate counts, seven thousand allegations, in three different conflict zones over eight years; over one million pages of evidence, over one thousand exhibits and videos; a transcript running tens of thousands of pages; 64,000 pages of filings; 133 live witnesses for Kosovo alone, 195 for the other phases. And this was the more modest case that the Chamber imposed; initially, the Prosecution had proposed to call one thousand witnesses, an unfathomable number.
Though less openly combative than Milošević’s methods, the Prosecution’s strategy was, in its way, an equally theatrical use of international law. Although the prosecutors were certainly entitled to bring a comprehensive case against one of the most reviled war criminals of the post–World War II period, from the vantage of procedural justice, their decision to try to implicate Milošević as widely as possible looks unconvincing in retrospect. It suggests that the Prosecution had succumbed to an overly ambitious logic, disregarding the costs of substituting a comprehensive strategy for a tightly focused forensic one.
And while the tedious length of the trial both slowed the delivery of justice and drained away interest*—hardly the goal of good theater—such overwrought indictments can also produce unintended consequences:
Excessively long trials that follow in the wake of unnecessarily broad indictments … also increase the irritability of the accused, the lawyers, and even the judges, eventually giving way to public expressions of their frustrations and emotional distress.… Psychologically, the drain on all participants of months and months of courtroom bickering cannot help but lower their tolerance points and make more likely ugly exchanges, name-calling, and dramatic gestures, all of course reported in the news and on television for shock value and head shaking.11
In the Milošević trial such dramatic gestures were the order of the day. Throughout the trial, the defendant railed against the Tribunal. On several occasions, when the defendant had exhausted Judge May’s tolerance, May ordered Milošević’s microphone to be switched off.
A year after the death of Milošević, Judge Kwon insisted that “the most effective measure for tackling the problem of lengthy trials would be to limit the number of charges in the indictment themselves. With a more focused indictment, the production and analysis of crime-base and linking evidence would be a much speedier process than it currently is in the majority of the cases at the Tribunal.”12 As we shall see, the Rule 98bis Decision, which Kwon coauthored, was a first step in this direction. Although the proceedings reverted back to the theater of international justice when Milošević commenced his defense case in September 2004, the Trial Chamber’s effort to streamline the ICTY’s most challenging and visible trial is remarkable even in retrospect.
The Rule 98bis Decision pulled Milošević back from the abyss of a tendentious political trial. It reestablished the supremacy of international law, and notably of international legal procedure. The three-member Chamber rescued the Tribunal’s major trial—at least temporarily—from the performative antics of both the Prosecution and the Defense. The Chamber pushed back against the challenge from the Amici Curiae and the Accused’s theatrics by defining sensible legal standards against which the factual evidence had to be measured, while at the same time it cut the Prosecution’s sprawling case down to size.
The judges’ tentative review of the evidence announced in June 2004 was a mostly competent analysis of the case to date. Despite the fact that journalists and scholars criticized Robinson, a former career diplomat, for his occasional lack of control in the courtroom, he deserves credit for helping to rein in the scope of the Decision. The judges’ comprehensive stocktaking addressed and answered, preliminarily, important legal questions that drove the trial. Thorny questions at the heart of the Decision touched on the existence of an armed conflict in Kosovo, the legal distinction between forcible transfer and deportation as crimes against humanity, and the nature of statehood in Croatia.13 These were matters of great importance in Milošević because they addressed the application of the ICTY’s substantive law to the plethora of crime scenes in the indictment. Although much of the subsequent discussion about and mobilization of the Decision has revolved around the factual evidence, it is the legal standards that provide the frame in which those facts matter, and the Decision set clear standards in this respect. Even Waters, who is generally skeptical about the value of the judges’ views in the Decision, acknowledges that it is precisely on these matters—on questions of legal interpretation—that the Chamber speaks with greatest confidence, clarity, and reliability.* Indeed, it is also on such matters that its comments were most consequential.
A major contribution of the Decision to the expeditious administration of justice was its pruning of the charges and crime scenes contained in the Milošević indictment. Although the Trial Chamber “found sufficient evidence to support each count challenged in the three Indictments,” in fact it dealt a serious blow to the Prosecution, for at the same time it held “that there is no or insufficient evidence to support certain allegations relevant to some of the charges[.]”14 Scores of challenges to the Prosecution presentation of the case against Milošević were granted; altogether, 130 alleged crime scenes were purged. As Boas writes in his book, “Despite the very low evidentiary threshold to establish a charge at the judgement of acquittal stage, the strain of the breadth and scope of the prosecution case could clearly be seen, with acquittals being entered in respect of over one thousand charges across the Croatia and Bosnia indictments.”15 The ultimate effect on the Prosecution’s case is, of course, unknowable, and beside the point: As a matter of judicial process, the Decision was an opportunity to streamline a bloated trial, and the judges took it.
The Decision bespeaks a judicial competence that was not always in evidence in Courtroom I. It represented a judicial high point in a trial that was marred, both before and after the Decision, by a tendency for grandstanding by its parties. To a degree, of course, the judges’ were ultimately responsible for controlling the proceedings, and bear some blame for this, but in writing the Decision—away from the courtroom, in full control of their own process—the judges made a sober contribution to international procedural justice and, as a result, to the ICTY’s credibility more generally.
Still, the judges also fell short in critical respects, and we shall focus on two related shortcomings here. The first relates to the Chamber’s uncritical acceptance of the Prosecution’s theory of responsibility, notably its invocation of the doctrine of JCE. The second has to do with the judges’ hesitation to radically curtail the Milošević trial’s geographical scope. Together, these suggest that although the Decision successfully limited the Prosecution case’s scope in broad, numerical terms—in terms of the charges—it failed to constrain its conceptual profligacy.
JCE: The question of responsibility is raised most vividly by the Chamber’s perfunctory treatment of JCE doctrine—a superficial engagement all the more surprising in light of the extensive discussion other Trial Chambers, not to mention the Appeals Chamber, have devoted to this invented mode of individual criminal responsibility. Both the majority opinion and Kwon’s dissent are problematic, and two aspects in particular: the Chamber’s expansive conception of the boundaries of the JCE; and its uncritical embrace of a supposed compatibility between the requirements of genocide and the lowered mens rea needed for a conviction under the so-called JCE III theory.*
Both the literature and the jurisprudence on JCE are extensive, and contain contending positions;16 JCE “still remains one of the most contentious issues in [the ICTY and ICTR’s] jurisprudential life and its contours have fluctuated a great deal over the years.”17 Unfortunately, the Decision acknowledges neither this doctrinal dissonance—apparent even within the ICTY’s own jurisprudence18—nor the immense evidentiary challenges in delineating the nature and membership of a JCE. The mere 20 lines of text justifying the finding that the Prosecution had put forward sufficient evidence to continue the trial to determine if Milošević “was a participant in a [JCE], which included the Bosnian Serb leadership, the aim an intention of which was to destroy a part of the Bosnian Muslims as a group,”19 are wholly inadequate in light of the significance of the issue. This is all the more so considering the extended length of the Decision, which runs to 330 paragraphs, not counting the separate and dissenting opinions; it is not unreasonable to expect that the Chamber could have devoted more than a single paragraph to the fledgling doctrine of JCE and its application in the Milošević case.
JCE remains controversial for a reason, for there are inherent risks or trade-offs in relying on JCE as a principal mode of responsibility:
Unless narrowly construed, this form of liability could come dangerously close to assigning guilt for mere membership in a group (be it a political party, the main staff of an army, the crisis staff of a region, or a ministry) and de facto place the burden upon the accused to establish that, despite its belongings to such a group or despite his association with members of that group, he did not partake in a criminal purpose that was assisted or pursued by that group.20
The potentially problematic nature of JCE is specially heightened in genocide prosecutions such as Milošević because of the effects JCE can have on the standards for the mental element. In a genocide case, if the dolus specialis of the defendant can be directly established beyond reasonable doubt—if it is incontrovertible that he personally had the intent to commit genocide—no problem arises. However, in cases based on a JCE theory, as all the leadership cases such as Milošević are, the matter is more complicated: In the Decision, the Trial Chamber held it plausible that “the Accused was a participant in a [JCE]… to commit other crimes than genocide and it was reasonably foreseeable to him, that as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the [JCE], and it was committed.”21
This disposition is problematic because it necessarily contemplates the possibility of a genocide conviction with a mens rea requirement lower than special intent. According to the judges, it was “not necessary for the Prosecution to prove that the Accused possessed the required intent for genocide before a conviction can be entered on this basis of liability.”22 With this pronouncement, the Chamber risked watering down the dolus specialis of genocide at a point during the proceedings when no strong determination of this kind was called for.23
In his dissenting opinion, Judge Kwon further complicated matters. He disagreed with the majority’s finding that a reasonable trier could find that Milošević himself had the dolus specialis required for genocide. Yet Kwon believed that Milošević could be convicted for genocide under JCE III, which imposes liability for crimes that were a natural or foreseeable consequence of the common plan at the heart of the JCE)24—signaling that, for him, the only way Milošević could be convicted for genocide was on a theory that allowed a lowered mens rea.
It is not self-evident that the Trial Chamber, at this juncture, needed to settle conclusively if the mens rea requirement for genocide was compatible with the mens rea for JCE III, either in general or in the case at hand. Certainly, Rule 98bis did not require the Trial Chamber to go this far: The judges could have raised the thorny legal question of the mens rea for genocide under JCE III without actually answering it. Under Rule 98bis’ standard of review, all they needed to indicate was whether the Prosecution’s preferred theory was plausible enough for some hypothetical chamber to accept.
Even if they wished to engage more concretely with the Tribunal’s existing jurisprudence, the judges in Milošević could have argued that the Prosecution’s interpretation of JCE was in accordance with decisions from other Chambers that had allowed for the possibility of genocide convictions under JCE III even in the absence of evidence of dolus specialis. The Milošević judges could have given the Prosecution the benefit of the doubt—the benefit, that is, of Rule 98bis generous standard—while still highlighting the possibility that they eventually might find fault with the Prosecution’s theory. It would have been entirely reasonable, and permissible in procedural terms, to sidestep a resolution of this most difficult of legal questions until the judgment stage.
Instead, the Chamber gave a determinate answer, and the net result of the rudimentary reasoning they employed was conceptual confusion: In evidentiary terms, “a considerable question mark was left hanging over this crucial and emotive aspect of the prosecution’s case in respect of Bosnia—that Milošević had the specific intent to commit genocide in Srebrenica and elsewhere.”25 Given the charged nature of this portion of the Milošević case—the genocide counts being probably the most controversial and potentially consequential aspect of the whole trial—the Chamber would have been better advised, in 2004, to sidestep the problem of JCE—or to engage it in a more sophisticated manner. The doctrine was still evolving and continued to baffle all Trial Chambers despite regular interventions by the Appeals Chamber intended to clarify the nature of JCE in all of its categories. The judges in Milošević would have been well-advised to acknowledge the potential difficulties involved in relying on JCE III to attain a genocide conviction, and therefore reserve judgment on the issue—literally and figuratively.
Scope: Aside from the evidentiary laxness introduced by JCE, there is the related problem of the Decision’s failure to constrain the case’s scope. Despite the fact that they found some one thousand allegations against Milošević unconvincing, the judges missed an opportunity to further streamline the overwrought case in coherent and systematic ways. Despite substantially pruning the Prosecution’s case, the Chamber proved unwilling to reduce the scope of the trial in a more than superficial or scattershot manner. Human Rights Watch, after a comprehensive evaluation of the Milošević trial, persuasively argued that “crime scene evidence still could have been narrowed further” in the Decision.26
By drafting three comprehensive indictments, the Prosecution sought to make the case representative of the types of international crimes it believed had been committed, the temporal and geographical dimensions of the conflict, and the types of contributions that Milošević was alleged to have made to their furtherance. This was a tall order, but given Milošević’s centrality in the violent dissolution of Yugoslavia, it is certainly understandable why the Prosecution was itching for a master trial, so to speak. And yet it would have been possible to underscore the breadth and variety of criminality with a far more selective prosecutorial strategy—which is why the Motion to Acquit presented a unique opportunity to the Chamber.
Because the judges had not previously used their proprio motu authority to curb the expansive indictments, they might have invited the Prosecution to consider dropping charges, or even counts, that were not integral to the project of proving individual guilt and that would not have seriously compromised its desire for a comprehensive case. The Rule 98bis context itself would not have been appropriate for doing this, but given that the judges found that more than one thousand allegations were insufficiently supported by the Prosecution’s evidence, such an intervention could have been justified procedurally. It would have been legitimate, even prudent to remind the Prosecution of the need to reconcile the conflicting imperatives of conducting a fair and expeditious trial and proving system criminality.*27
Perhaps indirect proof of this idea that that there was more room for streamlining the case is that, in the wake of Milošević, a number of other judges at the Tribunal embraced “a more aggressive approach in eliminating crime scenes.”28 In addition to adopting, in May 2006, Rule 73bis (d) and (e)—which allowed Trial Chambers to invite the Prosecutor to reduce the number of counts charged, to select a limited number of crime scenes, and to direct the Prosecution to focus on specific counts—the ICTY Chambers as a whole became less lenient with the Prosecution as far as the empirical breadth of indictments was concerned. Indicative of this new judicial regime was the MOS trial, which unfolded in a far more circumscribed fashion than originally envisaged by the Prosecution in its indictment, the core of which originally had been joined with the Milošević indictment. More recently, the Mladić Chamber also slashed the indictment, reducing it from 196 to 106 charges “in the interest,” as the judges put it, “of a fair and expeditious trial.”29 Upon the invitation of the Trial Chamber, the Prosecution also limited the number of municipalities to 15, down from 23. By so doing, it drastically reduced the alleged number of crime scenes, yet the indictment, if proven, will still more than suffice to serve the goals of demonstrating individual guilt and indicating more comprehensive claims about the conflict.
The Rule 98bis Decision may not have delivered substantive justice for international crimes perpetrated on the territory of the former Yugoslavia, but it meted out international procedural justice. It ushered in a new mode of interaction between the judges and Milošević. In the immediate aftermath of the Decision, “The mood in court had begun to change this summer, when a new judge, Iain Bonomy, replaced Richard May, who [had] died of cancer. It seemed Judge Bonomy, a no-nonsense Scottish judge, had not been worn down by Mr. Milosevic’s ways.”30 Although Bonomy’s personality played an important role in the Trial Chamber’s reassertion of authority in the courtroom,* it is reasonable to suppose that the confidence and comprehensive grasp of the case that the Chamber generally displayed in the Decision contributed to putting the parties on notice.†
Despite these positive consequences that directly or indirectly flowed from the Decision, it is likely that, had there been a final judgment in the Milošević trial, the 2004 Decision would now be regarded in a far more negative light, because the very idea behind it has come under attack. Judge Robinson’s separate opinion cast serious doubt on the necessity of the “no case to answer” provision in the ICTY Statute.‡ Other practitioners concurred, finding that Rule 98bis “has no useful place in international prosecutions.”31 It is ironic, therefore, that it was the existence of this useless rule that allowed the Trial Chamber to regain some of the legitimate authority that it had previously lost. The Decision re-legitimated the Milošević trial through international legal procedure.
Although the Decision does not substitute for judgment, it is worthy of recognition in the annals of the ICTY because it interrupted the developing theater of international justice in the trial of the Tribunal’s most infamous defendant. It usefully reminded the parties to the proceedings as well as onlookers that an international trial is not—and should not be—overly dramatic. Long before Milošević, international trials were criticized as “a citadel of boredom.”32 Yet being boring is not the same thing as failing to do the work that international adjudication should do. By responding with great care, and for the most part in great detail, to the procedural requirements of the ICTY, the Milošević Chamber tied the acceptability of its findings not only to the quality of its arguments but also, and perhaps more important, to the structure of the argumentative process at the Tribunal. If we believe Habermas, this approach to international law “relies on a strong concept of procedural rationality that locates the properties constitutive of a decision’s validity not only in the logicosemantic dimension of constructing argument and connecting statements but also in the pragmatic dimension of the justification process itself.”33 It is in this sense that the Chamber moved beyond the theater of international justice.
By emphasizing the centrality of international law’s procedure—not its politics—the Rule 98bis Decision repaired and redeemed some of the pathologies of the Milošević trial. Although no legal proceeding is able “to control the way in which it will become a cultural artifact and will pass into collective memory,”34 the Milošević Chamber’s Decision went a long way toward restoring confidence in the legitimacy of international adjudication at the ICTY.