Global Policy Forum

By Gwynn Mac Carrick *

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 which ended with his death before judgment 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."

The Milosevic case was used as both an example and an illustration of what not to do during the Iraqi judges' preparation. A major departure from the Milosevic trial is that Saddam is being tried on individual and specific charges rather than a broad case of crimes against humanity. This is a big lesson to draw. Schraf explains that in the Iraqi court each case stands on its own, at the end of which, there will be a judgment. The judgments of these mini- trials constitute "snapshots of evil".

According to the daily Le Monde, the high court in Baghdad announced on April 4 that after the initial trial, a more significant trial would be held in which Saddam Hussein and six other defendants would be tried for crimes committed during the 1987 and 1988 anti-Kurd campaign in Al-Anfal, resulting in 100,000 to 200,000 victims. In this case, Saddam is indicted along with Ali Hassan Al-Majid, (known as "Chemical Ali"), on charges of genocide and crimes against humanity, for the destruction of thousands of villages, the displacement of their residents and the gassing of the village of Halabja in March 1988, which resulted in 8,000 victims.

The hearing of these "snapshot of evil" indictments could last for years as new charges, including genocide are laid. The Iraqi authorities are keen for closure following former Yugoslav president Slobodan Milosevic's death before he faced a verdict on war crimes and also conscious not to "bite off more than they can chew". Attempting to try the ousted leader for genocide against Kurds will almost certainly mean that these criminal matters will take years to resolve. However, by drafting a series of disciplined indictments that focus on specific events the trials are self-contained.

Some observers have cautioned against haste. The former chief of the Iraqi Crimes against Humanity Unit, Tom Parker, says that in the context of Iraq it is more important for due process to be seen to be done than it is for a speedy trial. Parker favours procedural fairness over timeliness, on the basis that Saddam's trial should constitute "an important building block in the construction of a credible Iraqi judicial system". He added that, "a rushed trial could signal nothing had changed and justice in Iraq was still biddable to political expediency".

Also speaking of the Iraqi court, Theodor Meron said it would have to guarantee the rights of its famous defendant to appear credible to the public, stating, "Any court dealing with atrocities has to pay particular respect to due process. There can be no cutting corners."

It is a universal principle that any criminal jurisdiction, be it national or international, must extend to an accused person a system of justice that is both regular and fair. While not for a moment suggesting that there should be any diminution of the rights afforded the accused in major trials of this nature, it is important that the prosecutors do not hoist themselves on their own petard.

A trial of an individual cannot at the same time attempt to satisfy other external agenda, for instance, attempting to be a national catharsis, a medium for national healing, a comprehensive history lesson and a panacea for a failed justice system. Unnecessarily broadening the trial objectives beyond the displacement of the burden of proof by the satisfaction of requisite elements sets the bar for the prosecution at an impossibly high level, thereby playing into the hands of former dictators, who are masters at manipulation and astutely aware of the theatrical effect of behaving badly.

If the prosecution stakes out the righteous high ground, then the defence will inevitably seek to show that the prosecutor represents an interested party rather than a mere officer of the court. The contest is then about personalities, as opposed to the merits of the matter. If the trial simply deals with the merits in a value neutral manner, then it will avoid the trial becoming a showdown between morality versus hypocrisy.

Some commentators have suggested that one of the greatest obstacles for prosecutors in the trials of former dictators is the sheer force of their personality on trial. Milosevic, for instance, acted in his own defence, with a staff of Serbian lawyers and researchers collecting material and conducting investigations on his behalf. He also had two court-appointed attorneys who intervened in procedural matters. This permitted him to have counsel, but also be disruptive himself.

Many critics and courtroom observers say Milosevic was the main reason his trial lasted so long. Early in the trial Milosevic was known for courtroom speeches and temperamental outbursts, following every nuance of exchange and frequently interjecting complaints or questions, even correcting courtroom interpreters. Milosevic disparaged the tribunal in court, threatened and insulted witnesses and tried to make the trial about the US and British military action against Serbia. He logged a succession of sick days on doctors' recommendation, resulting in the court sessions being reduced to three days a week to reduce his stress and hypertension.

The lessons of Milosevic's prolonged trial were uppermost in the minds of those establishing the criminal tribunal for Iraq, now underway in Baghdad. Methods for keeping the trial short, fair and under control were the primary concerns. Keeping order in these politically charged cases have proved a big issue. In an effort to circumvent this problem of self-representation, last August the Iraqi National Assembly enacted revised rules for the tribunal. Under the rules, Saddam had to be represented by legal counsel, in order to prevent him from using the court as a political forum to attack the US and the new Iraqi Government.

In keeping with Iraqi legal tradition, however, the judges have allowed Saddam to question witnesses. This has given Saddam a platform to disparage and prevaricate. So far, according to observers, the trial of Saddam Hussein has been characterised by chaos, with the bench often struggling to maintain order. The defence lawyers walked out, prompting their dismissal and an order by the court to continue the trial with court-appointed public defenders. In protest, Saddam and his co-defendants have refused to return to court, thereby requiring the court to make a case to the public, clearly explaining the ruling.

From the initial proceedings it is evident that the Iraqi tribunal will have teething issues, but whether any lessons have been learned from The Hague experience remains to be seen.

Undoubtedly, the trials of leaders such as Slobodan Milosevic and Saddam Hussein will be followed shortly by the trial of other similarly situated deposed leaders. This week the UN Security Council may ask the Netherlands to host the special court for Sierra Leone, established four years ago in Freetown, so that it can try its most important defendant, former Liberian president Charles Taylor, who was incarcerated on March 29. In this case it would appear that the relocation of Taylor to The Hague is a prosecutorial strategy aimed at security and to avoid the pitfalls of in situ prosecution.

Similarly, the lessons learned from the trial of Milosevic have application elsewhere. For instance, if the international community is to avoid the same outcome in Cambodia as the Milosevic trial, it will need to ensure the prompt establishment of a trial chamber to begin hearing matters as a matter of priority. Presently the Cambodian Government is delaying setting up the extraordinary chambers to try ex-Khmer Rouge leaders, adopting a strategy that increases the likelihood of these leaders dying before they come to trial. It is imperative that we learn the lessons. Trying former world leaders is always going to test any criminal system, but the Milosevic precedent tells us that the prosecution can get smarter and more efficient about how they conduct proceedings, primarily by simplifying their prosecutorial strategy. Ambitious drafting is counter-productive and zealous posturing with respect to what these trials will achieve on a grand scale, will be met predictably by distain and counterclaim from the defence.

If we have learned anything from Milosevic's trial it is "keep it simple" and "keep it free from posturing" by both parties to the proceedings. This way the international criminal process can ensure the pronouncement of timely and disinterested judgment from legal institutions which are, to the extent possible, freed from their political context.

About the Author: Gwynn MacCarrick is a Human Rights lawyer based in Hobart. She has appeared as Defence counsel before the UN Special Panel for Serious Crimes in East Timor, has worked with the Office of the Prosecutor at the UN Criminal Tribunal for the Former Yugoslavia, and in between her domestic criminal practice has taken up various postings with the UN High Commission for Refugees. Gwynn is undertaking a doctorate in international criminal law at the University of Tasmania Law School.