Global Policy Forum

By Mirko Klarin

The Hague tribunal is in the grip of a serious financial crisis, while the case against former president Slobodan Milosevic is on the verge of collapse, according to a gloomy diagnosis from some Yugoslav and western media last week.

A glance at the reports might persuade Milosevic that he has achieved his stated mission to "destroy this monster of a court") sooner than he had hoped. But before the former president packs for a triumphant return to Belgrade, a closer scrutiny of the "serious financial crisis" is in order.

Last week, the President of the Tribunal, French judge Claude Jorda, told German ZDF TV that the court's budget for 2002-3 has been blocked within the United Nations Budgetary Committee by the United States. He added that the trial of Milomir Stakic, former president of the Serb Crisis Headquarters of Prijedor in north-west Bosnia, who is accused of genocide, would be postponed as a result.

The publicity Jorda's statement triggered across the former Yugoslavia, most notably in Belgrade, suggests that a financial crisis would be welcomed by those who consider the tribunal unnecessary, costly and wasteful and would like to see the back of it as soon as possible. That must be why they rushed to the conclusion that the tribunal is facing bankruptcy and may close at any moment.

At first sight, President Jorda's comments would seem to confirm the argument in a recent Tribunal Update No 250: namely, that some in the international community are beginning to show symptoms of "tribunal saturation" and are impatient that its mission should end as soon as possible. Blocking the budget would be an effective way for an international community preoccupied with new, post-September 11 priorities to offload the burden of the court.

But if that was the intention, it has backfired. At issue is a temporary blockage of a proposed increase in the budget, which if not resolved could end up prolonging, not reducing the tribunal's lifetime.

The US representative on the UN budget committee requested additional arguments in favour of a proposed 13 per cent increase in the tribunal's budget for 2002 and 2003. They must be submitted by the beginning of March. Meanwhile, the tribunal will continue to operate on its 2000 budget.

The increase was requested in order to speed up the trials and thereby reduce the tribunal's lifetime. Additional funds would also enable the implementation of various reforms approved by the UN general assembly and the security council. It seems only logical that the funds to institute those reforms will be forthcoming.

In concrete terms, the extra funds would enable the appointment of additional ad litem judges for the sixth trial chamber, plus additional prosecutors for the sixth trial team within the Office of the Prosecutor. The Hague would then have the capacity to run six trials concurrently.

It is expected that the present impasse - which is budgetary as opposed to financial - will be resolved. The tribunal is not, in the meantime, facing bankruptcy.

Whether the prosecution case against Milosevic is really on the verge of collapse can be assessed during his trial, the earliest starting date for which is February 12, 2002. At present, the prosecutor is awaiting the outcome of an appeal against the trial chamber decision that Milosevic should be tried first for Kosovo, then in a second joint trial for Croatia and Bosnia.

The prosecution is claiming that all of Milosevic's crimes represent "the same transaction", that they all constitute a "common scheme and strategy", and should therefore form a single trial. Their appeal will hear the appeal on Wednesday, January 30.

The theory that the prosecutor's case is about to collapse because of the alleged refusal of so-called "insiders" to testify against Milosevic, was aired in the London-based Independent newspaper on Saturday, January 26. It is far from new, however, having been offered up by Milosevic's Belgrade lawyers to anyone who might be interested.

Such claims serve two functions for Milosevic's Belgrade counsel. By claiming the prosecutor is having difficulties securing testimonies from former members of Milosevic's inner circle, they are bolstering their client and themselves. Secondly, by keeping the issue of "insiders" in the limelight, they are exercising subtle intimidation of any of the former president's allies who might be considering telling all to the court.

The prosecution says between 25 and 30 insiders will come to The Hague and provide first-hand testimony on Milosevic's role in the events outlined in the various indictments. Identifying the former insiders - or traitors, as some would have it - has become something of a game in Belgrade.

The media has published lists of dozens of potential insiders - or traitors as many in Belgrade prefer to seem them - compiled on the basis of who knows what. The candidates were then "polled" as to whether they will testify against Milosevic or not. Of course, all of them said they weren't, since, given the current atmosphere in Serbia, it would be madness to announce one's intention to testify at The Hague against the former head of state. Those who do go will do so under protected identity, maybe in closed hearings, so there may be no public account of who has testified or what has been said.

Milosevic will, of course, know who they are and could use his lawyers, advisors and party comrades to disclose their identities. That would be a grave violation of the tribunal's rules of procedure, a contempt of court punishable by up to seven years imprisonment or a fine of 90,000 euros. Not that this is likely to worry Milosevic - he frequently expresses his contempt of the tribunal with impunity.

For this reason, the prosecution requested and received the judges' permission to withold the identity of the protected witnesses - predominantly insiders - from the defence as well as the three "friends of the court" until ten days before their testimony, instead of the customary thirty. Up to now not a single name has been disclosed, either to Milosevic or his amici curiae lawyers.

Moreover, it is not clear whether the prosecution yet knows which of the insiders will testify on Kosovo and which on Croatia and Bosnia. If the prosecution loses its appeal for a single trial, it may need to deploy its insiders carefully. It may prefer not to "spend" all of them on the Kosovo trial, but retain some for the Croatia-Bosnia case.

Ultimately, however, no one outside the inner circle of the Milosevic prosecution team has any reliable information on who the potential moles are, or if they will come to The Hague.

Those forecasting a collapse of the prosecution case also claim that a reliance on testimonies from Western officials, instead of findings from the tribunals' own investigators, represents a fundamental weakness. This assessment is problematic, to put it mildly.

For a start, when the Kosovo indictment was issued in May 1999, Milosevic was still in power, so insider testimonies were beyond the wildest dreams of the then chief prosecutor Louise Arbour. The indictment was therefore based on other evidence from the outset.

Confirming the indictment in 1999, judge David Hunt concluded that the evidence therein was sufficient to find the accused guilty and sentence him - unless of course the defendants could disprove the claims. Prosecution investigators later entered Kosovo to begin what could be the biggest ever on-site criminal inquiry, supported by forensic and criminologist teams from over ten countries. Its preliminary results, announced in autumn 1999, "largely confirmed many allegations from the indictment".

The prosecution would appear to have a wealth of evidence at its disposal. Statements from Western officials and intelligence reports are no doubt included among the various sources. Milosevic, his lawyers, or even the amici curiae, may question the credibility or probative value of such reports, but reports of this nature are admissible and have played an important role in other proceedings in both national and international courts since World War Two. It is the judges' task to assess the credibility of such reports and decide what probative value to give them.

Milosevic's last appearance before the trial chamber clarified - if anyone was in any doubt - his view that his experiences at The Hague have been part of an "English plot". Disputing the independence and impartiality of the tribunal, he noted that "the indictment was issued on the basis of allegations by the English intelligence service, the judge is English, the prosecutor is English, [one of] the amicus curiae is English..."

So it seems that predictions of a prosecution collapse and a financial crisis are a bit wide of the mark - and Milosevic has a long hard fight on his hands against that "monster of a court".

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