The long-running trial of Slobodan Milosevic in The Hague, complete with courtroom drama, demonstrated the many pitfalls entailed in trying deposed leaders in a court of law. In the wake of the failed prosecution of the Serbian leader, it is timely to decide what lessons, if any, can be drawn from this trial, which might have application for the proceedings against former Iraqi President Saddam Hussein, in Baghdad, and other high profile defendants in the future.
Inevitably, former world leaders indicted for international crimes will not go quietly. These chief defendants drag out their cases, disparage witnesses, interject, follow nuisances of exchange, mock the court, evade and prevaricate.
It is of primary importance then, that the prosecution has a coherent prosecutorial strategy. What Milosevic’s trial has taught us is that the simpler the strategy the better. That is, by reducing the complexity of the indictment and limiting the objectives of the trial to achievable goals, the Office of the Prosecutor enhances the prospect of a final judicial outcome in the lifetime of the defendant.
Second, if the court and the international community at large are to separate facts from theatrics and prevent the court from being used as a venue for staging extrinsic and irrelevant political issues, there is a need to put in place a strategy for reducing the melodramatics of the courtroom proceedings.
Milosevic, 64, was charged with 66 counts of genocide, war crimes and crimes against humanity spanning the 1991-1995 war in Croatia, the 1992-95 war in Bosnia and the 1998-99 Serb crackdown in Kosovo. He denied the charges and died in custody before a verdict was delivered. Notwithstanding the voluminous amount of evidence presented, compiled in hundreds of thousands of documents and exhibits in his case, and the adducing of countless hours of witness testimony over the course of a four-year period, the net result was nil.
This was avoidable, given that the trial chamber judges, who became frustrated with the pace of the proceedings, urged the prosecutors to trim the indictment list to a manageable number of the strongest claims. However the prosecutors refused, on the basis that shortening the indictments would result in disrespecting the victims and ignore realities. Instead the prosecution offered an extensive amount of exhibits and an archive of eyewitness accounts, photographs and videos relating to the slaughter of an estimated 8,000 Muslim men and boys in July 1995 in the Bosnian town of Srebrenica and the relentless shelling of Sarajevo.
The Milosevic trial dragged on for over four years, with testimony from hundreds of witnesses and thousands of documents admitted into evidence, in an effort to present a comprehensive account of the historical events, rather than simply focusing on the elements of the crime.
This is where the international criminal prosecutions of major defendants are getting it wrong. Trials have become an attempt to reconstruct history rather that a strictly legal process. Prosecutions are approached from the viewpoint that the testimony of witnesses is a cathartic exercise, which marks the vindication of victims and the start of national healing. This is too ambitious. The court should be reserved for testing the strictly legal and factual issues.
In reality Milosevic's trial dealt with a mega-case, which involved atrocities committed over a decade in Croatia, Bosnia and Kosovo. The court proceedings concluded at Milosevic's death, with no judgment. The former Yugoslav president had eluded the criminal process.
The length and complexity of the Milosevic trial helped convince Iraqi prosecutors that they needed to concentrate on a few key events rather than attempt to cover the full range of alleged atrocities during Hussein's 24-year rule. To avoid this evidentiary overload, the Iraqi tribunal decided to conduct a dozen mini-trials, the first case focusing on Saddam's 1982 retaliatory attack on the town of Dujail and the torture and murder of 143 of its inhabitants.
Michael Schraf an eminent international lawyer who helped train the five judges for the Saddam trial suggests, “One of the lessons of the Milosevic trial is that war crimes need to be streamlined and efficient”. He states, “The old adage ‘justice delayed is justice denied’ proved to be accurate in the case of Milosevic”.
“The Dujail case is serving as a test cast, a judicial laboratory, for the judges to get used to the novel rules and procedures,” says Scharf. “Most importantly, they have learned how to balance the rights of the defendants and at the same time maintain control of the courtroom in the face of defence attempts to disrupt the proceedings.”