^* Christian Axboe Nielsen is Associate Professor of Southeast European Studies and Bosnian/Croatian/Serbian at the Department for Culture and Society of Aarhus University. He has worked as a Research Officer for the Leadership Research Team of the Office of the Prosecutor at the ICTY, and as an analyst for the Investigations Division of the Office of the Prosecutor of the ICC. He has testified as a Prosecution expert witness in Krajišnik, Stanišić & Župljanin, Karadžić and Hadžić.

^* Waters at 300.

^* It is hard to disagree with Richard Dicker, the director of the International Justice program at Human Rights Watch, who argued that “Milošević was not trying to rebut the charges against him but to conduct a political offensive.” Press Release, Hum. Rts. Watch, Milošević Escapes Judgment, Not Justice Process (10 Mar. 2006) http://www.hrw.org/en/news/2006/03/10/milosevic-escapes-judgment-not-justice-process.

^* Of course the adversarial nature of testimony in the courtroom, and in particular the often aggressive cross-examination to which witnesses are subjected, means that some witnesses are likely to produce their narratives in a different manner than they would in a session with a practitioner of oral history. See the collection of articles on Holocaust testimony, memory, and history in 27 POETICS TODAY (2006, v 2). In her chapter, Trix forcefully criticizes just this sort of difference between the treatment of oral and written testimony.

^† Indications to date are, however, that the ICC is significantly less expedient in processing cases than the ICTY. The International Criminal Court—Taking Stock, Chatham House, 12 June 2008, http://www.chathamhouse.org.uk/files/11735_il120608.pdf. Precisely because of “the snail’s pace” of international criminal justice, especially in cases such as Lubanga, the widely respected British judge at the ICC, Sir Adrian Fulford, has called for “a wholesale reassessment of how international war crimes trials are conducted.” Rozenberg, Standpoint blog, 16 May 2010, http://www.standpointmag.co.uk/node/3029.

^* DOUGLAS, MEMORY OF JUDGMENT 2. Commenting on Justice Jackson’s comment noted earlier, Dodd further writes that “The Nurnberg Trial was all of that and more. It was a detailed and exhaustive analysis, under judicial authority and through adversary proceedings, of the historical facts and forces, before and during the worst war in history. It was one of the most shocking conspiracy cases of all time. It was the greatest murder trial of record, covering, in a conservative estimate, six or seven million homicides, not including, of course, those killed in the armed services.… But it is more than a record; it is the written history of the first post-mortem on a catastrophy [sic] that cost millions upon millions of lives.” Thomas J. Dodd, in METTRAUX, PERSPECTIVES ON NUREMBERG 190.

^† After indictments were raised by the ICTY against leading Croat participants in Operations Flash and Storm that led to the collapse of the RSK and the exodus of most Croatian Serbs, the leadership of Croatia repeatedly and preemptively tried to assert the innocence of the accused, with the implication that, whatever the findings of the Tribunal might be, the “truth” had already been found. HINA, Sanader: Oluja je sjajna ič ista pobjeda, Vjesnik, 4 Aug 2008. With the acuittal on appeal of Gotovina, this strategy has become moot. See Lamont on the interactions of the ICTY and Croatian elite narratives.

^‡ ICTY, About the ICTY, http://www.icty.org/sections/AbouttheICTY. See also the section “The Concept of Judgment as Authoritative Narrative,” in Waters.

^§ Pros. v. Karemera, et al., ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice 35 (16 June 16 2006). This decision of ICTR has proven controversial and appears to have some very problematic consequences. Peter Erlinder, a U.S. law professor working as a defense lawyer for a Rwandan opposition politician accused of genocide, was arrested in Rwanda in May 2010 on charges of genocide denial. Erlinder holds very idiosyncratic revisionist views of the Rwandan conflict. Karnowski, US Lawyer Held in Rwanda Critical of Its President, SEATTLE TIMES, 2 June 2010.

^* One could add a third modality: the “making of history” in the sense of the trial being a historical event.

^* For a more detailed discussion of the Decision’s procedural and doctrinal background, see Waters.

^* It is significant that in his separate opinion appended to the Trial Chamber’s Decision, Judge Robinson noted that the ICC does not provide for a procedure equivalent to Rule 98bis—suggesting, perhaps, that already by the time the Rome Statute was being drafted there were doubts about the value of a midpoint evaluation. Milošević case (16), Decision on Motion for Judgement of Acquittal—Separate Opinion of Judge Patrick Robinson 4 (16 June 2004). The Rule 98bis process—which did not exist when the ICTY was established—has since been streamlined.

^† As the Trial Chamber, the Amici, and numerous legal scholars have observed, Rule 98bis derives from the common law system and sits uneasily in the international judicial context. In common law systems, analogous rules serve to allow the judge to dismiss counts so as to prevent an error in law in case a lay jury were to convict on these counts despite no or insufficient evidence. BOAS, MILOŠEVIĆ TRIAL 122; Gaparayi, The Milošević Trial at the Halfway Stage, 17 LEIDEN J. INT’L L. 750–02 (2004) (“It is apparent that the rationale behind the sui generis ‘no case to answer’ mechanism at the ICTY, whereby, following a ruling that there is sufficient evidence to sustain a conviction on particular charge at the end of the prosecution case, it is nonetheless possible for the same trial chamber to acquit the accused at the end of the case (even where she or he calls no evidence) has left many at loss.”)

^* Here the Amici and the Chamber both referred to the test on the presence of armed conflict applied in Tadić. Milošević case (5), Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis 17 (3 Mar. 2004).

^* The absence of any genocide convictions at the ICTY for the events of 1992 has caused several scholars to criticize the Tribunal strongly. For example, Edina Bećirević argues polemically that the Tribunal deliberately set about rendering a genocide conviction only for Srebrenica in order to whitewash the international community’s failure to intervene decisively in Bosnia before August 1995. BEĆIREVIĆ, NA DRINI GENOCID, ISTRAŽIVANJE ORGANIZIRANOG ZLOČINA U ISTOČNOJ BOSNI (Buybook 2009); see also Attila Hoare, Bosnia-Hercegovina and International Justice: Past Failures and Future Solutions, 24 EAST EUROPEAN POLITICS AND SOCIETIES 191–205 (2010). Gow and Zverzhanovski also conflate the deficiencies of the Prosecution’s case on genocide in Milošević with “the weakness of the case” as a whole. Gow & Zverzhanovski, The Milošević Trial 902. For a critique of the strong focus on genocide in evaluations of the ICTY, see Nielsen, Surmounting the Myopic Focus on Genocide: The Case of the War in Bosnia and Herzegovina, 15 J. GENOCIDE RES. 21-39 (2013).

^† Prelec discusses this tendency in some detail. See also Hartmann on the shifting Prosecution strategy toward Belgrade’s involvement in genocide.

^‡ Milošević case (1) 98bis Decision 138 (16 June 2004). In criticizing the Prosecution’s approach to the genocide charge, Boas correctly notes that “the territorial scope, as well as the relevant target groups, of the prosecution case in respect of genocide was plagued by confusion and inconsistencies.” BOAS, MILOŠEVIĆ TRIAL 124.

^* Milošević case (1), 98bis Decision 288. Although Judge Kwon disagreed that there was sufficient evidence to show that “the Accused had the dolus specialis required for genocide,” he agreed with his colleagues that “there is sufficient evidence upon which a Trial Chamber could convict the Accused of (i) genocide under the third category of joint criminal enterprise, (ii) aiding and abetting or complicity in genocide, or (iii) genocide as a superior under Article 7(3).” Milošević case (15), Decision on Motion for Judgement of Acquittal, Dissenting Opinion 2 (16 June 2004).

^† More recent jurisprudence in Popović et al. suggests it is possible for several JCEs to coexist in space and time; that judgment found that at Srebrenica there were two separate but coexisting JCES, only one of which was genocidal in intent. On this logic, Milošević could have been part of a non-genocidal JCE but not been part of or privy to a genocidal JCE. This was not the logic advanced by the Prosecution at the time, but nothing would have prevented the Milošević Chamber from reaching that conclusion, as Popović did not long after. Pros. v. Popović et al. (1), Judgement (10 June 2010). See summary overview at http://www.icty.org/x/cases/popovic/cis/en/cis_popovic_al_en.pdf.

^‡ Gaparayi worries that “one cannot help but wonder whether the combined effects of the decision in Brđanin and the judgment in Krstić has diluted the mens rea standard for criminal liability to attach to specific-intent offences under the Tribunal’s jurisdiction, including the very serious offence of genocide, resulting, as it were, in a notion of individual mens rea so stretched that it is completely stripped of any meaningful purpose.” Gaparayi, Milošević Trial at the Halfway Stage 765. On the use of JCE, see METTRAUX, INTERNATIONAL CRIMES 287–93; Danner & Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL L. REV. 75 (2005). On 20 May 2010, the Pre-Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia issued a ruling effectively dismissing this modality of JCE, commonly called “JCE III.” Extraordinary Chambers in the Courts of Cambodia, Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (20 May 2010).

^* Milutinović, Šainović, Ojdanić and Stojiljković were originally jointly indicted with Milošević, but their trials were severed. Milošević was later mentioned as a member of the JCE in other indictments related to Kosovo (of Nebojša Pavković, Sreten Lukić, Vladimir Lazarević, and Vlastimir Đorđević), but they were not mentioned by name in the indictment of Milošević for the Kosovo conflict.

^* Jose E. Alvarez describes the judgment as an “historical overview [that] adopts an authoritative tone, with little reference to the evidence that led its authors to their conclusions[.]” Alvarez, Rush to Closure: Lessons of the Tadić Judgment, 96 MICH. L. REV. 2046 (1998).

^† See Boas’ chapter. See also BOAS, THE MILOŠEVIĆ TRIAL 115–17.

^‡ Boas acerbically notes that the acceptance of “Greater Serbia” as a “common purpose” at the ICTY is so broad that it could theoretically justify a joinder “encompassing all indictments against Serbs before the ICTY[.]” Boas at 118.

^§ BOAS, THE MILOšEVIć TRIAL 169. In Milošević, Audrey Helfant Budding, a Harvard PhD, testified as a Prosecution expert witness on “Serbian Nationalism in the Twentieth Century: Historical Background and Context,” Milošević case (56), Prosecution Exhibit 508. Arguably, however, Helfant Budding’s more nuanced treatment of Serbian nationalism was not reflected in the Prosecution’s case theory. The marathon case against the ultranationalist Serb political and paramilitary leader Vojislav Šešelj illustrated the profound difficulties of proving a war crimes case primarily based on ideology. In this sense, the Prosecution at the ICTY seems to have committed some of the same mistakes made by the Nuremberg prosecutors in their case against Julius Streicher.

^* See Hartmann especially at 480 ff.

^* The case against Milutinović, Ojdanić, and Šainović was later severed—thus the nickname “MOS”—and as a result of case joinders, was expanded in 2005 to include Nebojša Pavković, Vladimir Lazarević, Vlastimir Đorđević, and Sreten Lukić. Owing to his late apprehension, Đorđević was tried separately. Vlajko Stojiljković, the Serbian Minister of Internal Affairs at the time of the war in Kosovo, was also charged in the original 1999 indictment. He committed suicide on the steps in front of the federal Parliament in Belgrade in 2002 after a law permitting extraditions of Serbian and Yugoslav leaders to the ICTY had been passed.

^† In MOS, evidence from Milošević was admitted in several different ways. For witnesses whose testimony did not directly address the activities of the accused in MOS, statements were admitted through Rule 92bis. In cases where witness testimony bore directly on the conduct of the accused, they were cross-examined in court under Rule 92ter. It should be noted that two important witnesses in both cases, the Kosovar Albanian leader Ibrahim Rugova and the Croatian Serb leader Milan Babić, had died by the time of the MOS trial. Their statements were admitted under Rule 92quater, which specifically deals with witnesses unable to testify in court.

^* The testimony of key insider witnesses such as Milan Babić, former Yugoslav president Zoran Lilić, and JNA General Aleksandar Vasiljević in Milošević gives a good sample of the richness of detail available in the transcripts. For a very brief summary, see Gow & Zverzhanovski, Milošević Trial: Purpose and Performance, 32 NATIONALITIES PAPERS 910–01 (2004).

^* Scharf, Legacy of the Milosevic Trial, 37 NEW ENG. L. REV. 916 (2003). Scharf, writing at what he optimistically assumed to be the midway point of the trial, also viewed the potential outcome through a binary lens: Either a guilty verdict would be pronounced and the resulting record would “educate the Serb people,” or the trial would be perceived as “victor’s justice” and would “add to the Serb martyrdom complex.” This assumed that only a guilty verdict could be a successful trial, which itself would feed the perception among Serb critics that the trial was a show trial. Indeed, it mirrors the view by these critics that only an acquittal could prove that the Tribunal was fair.

^† Both the State Court in Bosnia and the Special Court for War Crimes in Serbia have issued judgments in war crimes cases, and they could be analyzed in the same manner as is done here for the cases at the ICTY. Indeed, some of the cases at the State Court in Bosnia were referred to the Court by the ICTY. To date, however, the conduct of war crimes cases in Serbia has been criticized for focusing only on direct perpetrators, and hence consciously avoiding the investigation and prosecution of leadership figures.

^* Intentionalism and functionalism are the two polar opposites in what A.D. Moses has appropriately called “the deep structure of Holocaust scholarship.” Roughly speaking, intentionalism holds that Adolf Hitler and the Nazi elite intended from the outset to exterminate European Jewry. By contrast, functionalism sees the massive scope of the Holocaust as stemming in large part from competing Nazi organizations striving to achieve Hitler’s aims. The analogous debate in Milošević revolved around the extent of Milošević’s criminal intent (and his genocidal intent, if any) and the degree to which Bosnian Serb and Croat Serb civilian and military leaders were acting independently or according to a grand plan for the creation of a Greater Serbia. Moses, Structure and Agency in the Holocaust: Daniel J. Goldhagen and His Critics, 37 HISTORY AND THEORY 194–219 (May 1998).

^† Several other chapters—Prelec, Shany, Bachmann, and Hartmann in particular—discuss the role of the VSO documents, parts of which were released through the Milošević trial process.

^* For example, Ratko Mladić’s wartime diaries contain significant information pertaining to Milošević, as well as other ongoing cases. Dnevnici Ratka Mladića, POLITIKA, 29 May 2010, http://www.politika.rs/rubrike/tema-dana/Skinite-anatemu-se-mene-i-Karadzica.sr.html; Ahmetasevic, Mladic Diaries May Sway Several Hague Trials, BALKAN INSIGHT, 24 June 2010, http://www.balkaninsight.com/en/article/mladic-diaries-may-sway-several-hague-trials; Prosecution: Mladic’s Diaries Are Evidence against Mladic, SENSE TRIBUNAL, 22 June 2012, http://www.sense-agency.com/icty/prosecution-mladic%E2%80%99s-diaries-are-evidence-against-mladic.29.html?cat_id=1&news_id=14126. On the diaries, see Prelec at 26.

^† This will also require judicious decisions with respect to testimony and documentary evidence submitted under seal to the Trial Chamber.