Global Policy Forum

By Helen Warrell

Conference delegates debate Hague tribunal's performance and ask whether the former Serb leader got a fair hearing.

More than a month after former Yugoslav president Slobodan Milosevic was buried with all the pomp and splendor of a lavish Belgrade ceremony, there is no danger of the subject of his trial being laid to rest.

This week, tribunal employees, Balkans experts, academics, diplomats and legal commentators gathered at the Irish Centre for Human Rights in Galway to attend a conference ambitiously titled "The Slobodan Milosevic Trial: The Verdict".

William Schabas, a genocide expert and the center's director, acknowledged the unusual nature of the meeting as he opened the debate. "I cannot think of a precedent for this happening in international law," he said. "We could certainly never do this in national law."

The conference was born out of a feeling that the unexpected death of Milosevic just as the four year case against him was ending called for some sort of closure, which tribunal judges would no longer be able to provide. However, the discussions concentrated not on the guilt or innocence of Milosevic, but on passing verdict on the tribunal itself. Rather than being a debate about the strength of the evidence brought against the ex-president, the focus was on how it had been presented. Participants looked at whether the trial had been fair, and whether enough had been done to protect the rights of the former president as he defended himself.

The overall tone of the conference was critical, and this mood extended from procedural aspects of the Milosevic trial all the way to back to first principles, with some participants suggesting the tribunal was politicized from the start and thus had little hope of being fair. The opposing view was not heard so strongly in Galway - that the undoubted problems the Hague court has encountered along the way should not obscure the bigger picture. Supporters of the Hague process have argued strongly elsewhere that war criminals must be brought to account and some kind of closure sought among the communities involved in a conflict – and that participants on all sides should be subject to investigation.

One speaker who did make this point was Michael Scharf, director of the Frederick K Cox International Law Centre at Case Western Reserve University, who said that with the advent of The Hague court, "the era of impunity has been replaced by an era of accountability".

Stephen Kay, Milosevic's court-assigned counsel, was among those who expressed concern that the political history behind the tribunal may have compromised its ability to dispense justice in a fair and coherent manner. He insisted that ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia host "political trials" which end up being "weighed down by the dead hand of the international community from which they are born".

Kay and Co-counsel Gillian Higgins were present on each day of the trial, and were responsible for writing Milosevic's legal submissions to the court. From the unique vantage point of someone who had close contact with Milosevic, Kay is adamant that the action brought against his client was an example of "selective justice".
"[The Hague cases] are put forward as trials for the benefit of the community out of which the conflict is arising. But we all know that states and nations get away [with illegal actions] if they are on the right side of the United Nations Security Council," he said.

Fairness depends partially on all parties being subject to the same rules and conditions, and Kay and others at the Galway conference suggested this was not the case in the Milosevic trial.

John Laughland, a British journalist who is currently writing a book that argues that the trial was a "corruption of international justice", asked why the Yugoslav tribunal had failed to indict NATO for war crimes following its controversial air strikes on Kosovo between March and June 1999.

David Scheffer, former ambassador-at-large for war crimes in the US State Department, replied that his government had been "very engaged" with the tribunal prosecution on this issue and had felt "very strongly" that there was no need for an investigation. Scheffer also firmly denied that the American government had lobbied the prosecutor to indict Milosevic in 1999. "[The Hague tribunal] is an independent court," he said.

Despite such assurances, there have been frequent criticisms that the Milosevic indictment –166 pages of allegations concerning crimes in Bosnia, Croatia, and Kosovo – was not the work of an independent body.

The Bosnia indictment, which accuses Milosevic of genocide and complicity in genocide against Bosnian Muslims, came under particular criticism from Schabas, who said that "sticking on a genocide count" in order to "keep a third of Yugoslavia happy" was no way to run a trial. He argued that even the most famous instance of genocide in the wars in the former Yugoslavia, the 1995 Srebrenica massacre in which some 8,000 Bosnian Muslim men and boys were killed by advancing Bosnian Serb troops, was not ordered by Milosevic or any of the Serb leadership in Belgrade.

Kay went further to suggest that the infamous Scorpions video, which appears to show Bosnian Serb paramilitaries carrying out executions at Srebrenica, was "not part of the evidence against Milosevic", and "was just shown [during the trial] so that the world media would report it". This was not the only criticism that Milosevic's counsel leveled at the fairness of the trial.

Gillian Higgins suggested that the length and breadth of the indictment had taken an "inordinately excessive" toll on all the parties involved. She cited the fact that in the Milosevic indictment, deportation alone was listed as eight different forms of criminal conduct in 64 locations spanning 13 municipalities. The prosecution's exhibits amounted to 85,526 pages of printed material and 117 videos.

"Was the scope of the trial too broad and far-reaching to be fair?" she asked. Higgins's conclusion was that although international trials are not inherently unfair, "the larger the battlefield and the longer the war, the harder it is to protect the rights of the accused".

Throughout the trial, many observers suggested that the conflict within the courtroom was aggravated by Milosevic himself. However, when Scharf said that Milosevic had obstructed the trial, he met with a storm of criticism.

Higgins objected strongly to the characterization of Milosevic as disruptive and said the judges had never referred to him in this way. Defending the former president's often antagonistic stance, Higgins said, "The courtroom is a place of battle, and that is what Milosevic was prepared for."

Schabas agreed that Milosevic "was not obnoxious and difficult in the courtroom"; while Kay said that it had been "pure political expediency" and not obstructiveness on Milosevic's part that had caused people to object to him representing himself. Kay feels strongly that the question of Milosevic's right to defend himself is key to the successful working of the whole trial. "You have to structure the trial so that the man who knows the case best can argue that case," he said. "No lawyer in the world knew that case better than Milosevic."

But in all their criticisms, Milosevic's lawyers were careful not to lay blame on individuals within the tribunal. Rounding off her evaluation of the trial, Higgins was surprisingly conciliatory. "Looking back at the courtroom and the players that toiled day in, year out, every person in the courtroom worked endlessly to ensure that the accused's rights were protected, however differently these rights were perceived by the parties," she said.

Another problem highlighted at the conference was the differences of approach taken by participants in the Hague process. Michael Johnson, the former chief of prosecutions at the Hague tribunal, implied that prosecutors had not always agreed on the right course of action.

"The prosecution is a large institution which doesn't always speak with one voice," he said, adding that differences in culture and national procedures had led to a diversity of attitudes among prosecutors, even on such fundamental issues such as the objective of holding a trial. "[Within the prosecution] there are those who believe that their purpose was to prove the history of the conflict. There are [also] those who strongly believe that the job of the prosecution was to prove the guilt or innocence of the accused," said Johnson.

According to Kay, this difference is vital. If the tribunal tries to create a historical record, it will only distract from the details of the crimes as they occurred. "You lose sight of the bodies in the sandpit, the empty villages, the shelling in the cities," he said. "This is the material stuff of the trial."

But if many at the Galway conference criticized the conduct of the trial and some of the underlying principles, a few such as Mark Vlasic, who worked on the Milosevic prosecution case, reminded everyone that the trial had been prompted by very real acts of violence.

"Witnesses came [to the tribunal] from all over the world. For them, it was a positive experience: they went back to their cities, towns, hamlets, villages and told about how they had testified against one who had caused so much trouble in their countries," said Vlasic.

"It is easy to step back and discuss these trials in an abstract way but mass graves litter the Balkans. The ICTY [former Yugoslav tribunal] serves as a forum for these lost souls."

Helen Warrell is an IWPR contributor.