THE LEGACIES OF MILOŠEVIĆ
The legacy of the Milošević trial within the professional and disciplinary confines of ICL is undeniable, and considerable: a greatly revised set of norms for self-representation, most obviously; but more broadly, sobering lessons—to some extent absorbed and accommodated—concerning the perils of trying senior political figures. The tighter grip shown by judges in more recent trials of prominent accused is in part a practice directly drawn from the lessons of Milošević, in part a consequence of changed rules—such as the streamlined Rule 98bis process—that themselves derive from the experience of that trial. Even the pressure to shorten trials—more felt than acted upon—derives principally from the recognition of how long the Milošević trial was, and how vulnerable such processes are to the actuarial vagaries of human biology. As much as anything, the mere fact of the trial, although uncompleted—the indictment of a sitting head of state—assures Milošević a place of precedence: a proof and assurance, just as the unperfected Pinochet extradition hearings earlier provided, that such things can indeed be done.
Yet even within the Tribunal, the trial’s influence is surely less than one would have expected. There is no Milošević judgment to be cited. There are only the interim and procedural markers laid down—and these are deployed and relied upon—but little from the evidence itself has had much purchase in the surrounding jurisprudence. Even the theories on which the Prosecution relied, and the contours of the JCE it described, have been radically altered and reduced in subsequent trials of senior Serbs, whether from Bosnia or Belgrade. Equally, though, this may be read as a legacy of the trial’s termination, since in the absence of a verdict actually ruling on the most comprehensive and ambitious version of the JCE, the Prosecution evidently drew conclusions about that version’s necessity, desirability, or viability for the remaining cases.
The broader political, social, and cultural legacy in the region is more ambiguous, as several of our chapters have shown: Though their views are diverse and oft en conflicting, none, it seems, find that the Milošević trial had a decisive impact on attitudes toward the conflict, toward former countrymen, or toward reconciliation. Of course the trial is not the Tribunal, even less the broader array of judicial measures undertaken in the wake of Yugoslavia’s violence, and to which hopes for transformation have sometimes been attached. Yet if not a dispositive fact in itself, it is surely worth note that this, the single most important trial, is so singularly absent from the discourses and the claims made, even today, about how law brings a fuller peace, if it does, after war subsides.
And this itself is perhaps the most important legacy of this troubled, terminated trial: a contribution to our debates about the ICTY and the broader ICL project, because that legacy was supposed to be clearer and more confident than it has turned out to be. The Milošević trial was supposed to do and be much more, and that it has not, and is not, is of the greatest consequence.