Global Policy Forum

By Alison Freebairn

Slobodan Milosevic warned Hague tribunal judges this week that he intends to ask for an extension to his defence case – confirming analysts' fears that he is running out of time in which to argue his innocence. Six months into the defence phase of the long-running trial, the former Yugoslav president has so far called some 20 witnesses to refute only one of the three indictments he is facing – that relating to Kosovo. And many observers say that in focusing on political grandstanding, little of the information that he has produced to date has been relevant to the charges against him.

Only three of the witnesses have presented any factual evidence to disprove the prosecutors' thesis - that Milosevic planned or at least knew of the systematic crimes of expulsion and murder committed in the province in the first half of 1999. The rest have just stuck to expressing their own views on the subject.

Besides frustration stemming from the slow pace of the trial, which is being heard just three days a week because of concerns about the defendant's health, Milosevic's conduct in court has also led to a series of reprimands from the bench. While insisting on acting as his own lawyer, he systematically tests the boundaries of what is allowed by the court, often filing documents late or incomplete.

Another issue raised by both the prosecution and the bench has been the scant information contained in a list of witnesses provided by Milosevic at the start of the defence phase. This has prevented the prosecution and the bench from accurately gauging how long it should take to process each witness, often resulting in a longer cross-examination period than necessary. Describing the accused as "mercurial", Edgar Chen of the Coalition for International Justice said that when he focuses, Milosevic sometimes shows himself able to "deal with the specifics of the charges and introduce evidence that might carry some weight in the view of the judges". But in general, he said, "He doesn't seem able nor willing to play by the rules."

The former Serb leader is charged with more than 60 counts of war crimes, crimes against humanity and genocide in three indictments relating to the conflicts in Kosovo, Croatia and Bosnia and Hercegovina. During the first few months of the defence phase, a stream of witnesses from the Serbian Academy of Arts and Sciences, SANU, outlined the long history of Serbia and Kosovo and opined that Milosevic's actions were taken purely in defence of the Serbian people against Albanian oppression.

Others spoke at length about the deterioration of conditions in the Serb-ruled province towards the end of the Nineties – which they mostly blamed on Albanian separatism. Only in recent weeks, with former Pristina Institute for Forensic Medicine chief Slavisa Dobricanin arriving in court to speak about the January 1999 Racak massacre in which some 45 Albanians were killed, has some factual evidence been presented relating to charges contained in the indictment.

The Racak massacre is generally held to have been a turning point in the conflict, leading indirectly to the NATO bombardment of Serbia that ended the war and hastened Milosevic's political demise. But the defendant argues that the killings were staged by Albanian insurgents in order to provide the international community with a pretext for military intervention. A number of other killings mentioned in the indictment have either been glossed over or dismissed by Milosevic.

He has also so far ignored large sections of the Kosovo indictment which deal with the expulsion and deportation of some 800,000 ethnic Albanians from the province, which he has explained away as a consequence of the NATO bombardment. Chen stressed that the defendant's insistence on repeating certain colourful theories, such as the existence of a worldwide conspiracy to destroy Serbia, or allegations that international media were in on the scheme, was doing no favours to his case. "By putting on witnesses to testify that Serbia was oppressed by the world and targeted by NATO, and that the Kosovo conflict was staged to boost CNN's ratings, he doesn't help himself. He has to address the charges detailed in the indictment," he said.

The former Yugoslav president's attitude in court has also been a cause for concern. As well as being regularly criticised by Prosecutor Geoffrey Nice for the late filing of vital information and documents, Milosevic has been frequently admonished by the bench for asking leading questions, wandering off-topic and attempting to deliver political speeches. Adam LeBor, author of Milosevic: A Biography, told IWPR that such "filibustering" has been a key element of the former Serb leader's behaviour in court. "His tactics have been to deny the tribunal's legitimacy while engaging with it in a way that slows things down as much as possible," said LeBor. "He seems to think that the longer things drag on, the better it will be for him, but actually that's not the case. He is choosing to grandstand instead of dealing with the details. It's almost surreal at times."

Heikelina Verrijn Stuart, a Dutch lawyer and long-time tribunal watcher, agreed that the former Serbian president appears to be trying to take advantage of his time in the public eye. "Milosevic is offering up very politicised witnesses to counter the evidence presented by the prosecution, and as a result he is repeating himself," she said. "He is only presenting a certain view of the events, whereas Nice was offering factual evidence – that's the difference."

Verrijn Stuart believes that Milosevic's insistence on making speeches and re-treading old ground is based on his need to prove to the world at large that his actions were justified. "He could be tangled up in his own feeling that he is right, and cannot let go of his need to prove it," she said. "This might make him a bad lawyer but it is part of his personality."

Milosevic's choice of witnesses and the importance he has placed on their testimony – even when they were unable to present any evidence to support their opinions, as was the case with several former high-ranking Russian politicians called in the early stages of the defence phase – was also telling. LeBor noted that such reverence for those of high rank had been a constant throughout Milosevic's long political career. "This is a very revealing glimpse of how he thinks – like a parochial communist official," he said. "Position is all that matters to him."

However, Milosevic's insistence on calling high-ranking former officials with little factual evidence to offer the tribunal has led to a great deal of repetition, and prompted Presiding Judge Patrick Robinson of Jamaica to intervene once already to force an end to the examination of one witness. Having cut short former Serbian foreign minister Vladislav Jovanovic's time in court on February 23 after four days of testimony and examination, Judge Robinson felt it necessary to warn the defendant that his time was running out.

In line with the length of the prosecution phase of the trial, judges have allocated Milosevic 90 days to present his defence and have granted the prosecution a further 60 days in which to cross-examine the defence witnesses. While no up-to-date figures are available as to just how many of these 150 court days have been used up in the defence phase, a February 10 statement put the figure at 14.5 of the 90 days granted to Milosevic, with just under 11 days taken of the 60 set aside for cross-examination by the prosecutor.

At an April 14 status conference – during which Milosevic announced his intention to seek an extension – Judge Robinson urged the accused to make use of tribunal rules allowing the prosecution and defence to use written testimonies in order to save time. He noted that of the 352 witnesses called during the prosecution phase of the trial, only 114 appeared in court in person. But the defendant refused to consider this option, which he claimed would be "to the detriment of the public nature of the trial".

Prosecutor Nice pulled no punches in his assessment of Milosevic's tactics to date. "The purpose of a public trial is to allow scrutiny so that it can be seen to be fair," he said. "It is not entertainment. It is still less for the purpose of propaganda. If [the defendant] persists in promoting his case on a false premise, he has only himself to blame." He urged the bench not to extend the 150-day period allotted to the defence phase of the trial and asked it to resist all pressure to do so. "We are very concerned about the overall length of this trial," Nice said. "It is in everyone's best interests that a timetable is set for this case to proceed, without breaks, to its conclusion. Otherwise the accused will push the trial chamber into a corner where he will then press for more time. His sole purpose is to make this trial last longer than it already has."

Milosevic denied that his plans to request an extension stem from a desire to extend the life of the trial. "I am going to ask for more time because without a doubt, I am going to need more time to hear my witnesses. This is in the interests of justice and truth, not because I take any pleasure in prolonging my association with Mr Nice," he told the court.

The status conference identified some ways in which the trial could be speeded up. These included starting each hearing at 8 am – effectively adding around two hours to the trial chamber's capacity each week – and even sitting for four days a week instead of the three recommended by medical experts concerned about the defendant's health problems. The trial chamber will issue decisions on the matters arising during the status conference in due course.

However, tribunal watchers feel that the course of the trial is unlikely to change dramatically in future – unless the chamber adopts a new, more severe strategy. Verrijn Stuart told IWPR that the judges should be more strict with the wayward defendant, and agreed with the prosecutor's assessment that he was merely trying to extend his time in court. "As soon as this trial is over, Milosevic will be out of the picture forever," she said. "This is his last chance in the limelight."