December 27, 2004 -- The more the Milosevic trial changes, the more it stays the same so the best wishes for the year 2005. The trial of President Slobodan Milosevic will be back.

President Slobodan Milosevic was transferred to The Hague in June 2001, about three and a half years ago. The trial is now roughly halfway through. Those who don't like Milosevic too much say that the long duration of the trial is his fault. But the point is that they don't like Milosevic too much. In principle, it can't be Milosevic's fault that the trial takes so long. The difference between the total length of the trial so far and the defence case which started only a few months ago was taken up by the prosecution case.

So maybe Milosevic took too much time cross-examining the witnesses? There are people who would be willing to admit their disregard of the fundamentals of a fair trial just to get Milosevic nailed. The prosecution for instance. The prosecution had planned to deal with the matter by written statements pursuant to Rule 92bis of the Rules and Procedures. The tribunal could not deny Milosevic the right to cross-examine the witnesses.

Geoffrey Nice, who leads the prosecution of Milosevic, has been ill at ease ever since. He told the judges on February 26, 2002 that the lengthy cross-examinations by Milosevic could deter future witnesses from testifying. Nice must have used the word testify in a very peculiar way if he thought that cross-examination kept the witnesses from telling the truth.

Or maybe it is Milosevic's fault that he is ill so often, as is sometimes suggested?  Those who blame Milosevic for being ill could just as well blame him for being alive. Let us remember that Bill Clinton recently had a bypass surgery. The former presiding judge Richard May is dead. It is true that the tribunal has not been forthcoming about Milosevic's possible health problems, but there is no reason to believe that Milosevic is making it up. Until very recently, any delay in the trial was routinely attributed to the flu. As people around Milosevic keep dying, it becomes almost impossible to believe that the recurring flu is his only health problem.

The tribunal came close to admitting that Milosevic had a major health problem in its decision to impose a counsel on Milosevic against his will in summer of 2004. But it came only close. In its Order on Future Conduct of the Trial of July 6, 2004, the tribunal hardly even touched on "the latest medical report from Dr. van Dijkman, dated 2 July 2004, which indicates that the Accused requires rest until at least 9 July 2004 and has a health problem which Dr. van Dijkman expects to recur".

The death of Richard May is worth mentioning not only because it is mentioned so rarely but also because it illustrates one fundamental point about Milosevic. After Richard May's death, Milosevic was given the possibility to seek a ruling of a mistrial, but he refused. Actually, he didn't say that he did not want to seek a ruling of a mistrial. He did not say anything, because that would have meant that he would have recognized the tribunal.

That silence was interpreted in a way that suited the tribunal. The trial was to go on as before. Milosevic's silence also allowed the tribunal to show its magnanimity, because it did not have to run counter to Milosevic's wishes on that particular point, although it rejected everything else that Milosevic requested on the same occasion, including his request to be released. In the same context, the tribunal also had time to reassess the future conduct of the trial, which meant imposing a counsel on Milosevic against his will.

Against all odds

The trial has been going on for so long that the central question seems to be who is responsible for slowing it down. It is easy to forget that the trial is not about determining who is responsible for its excessive length but about determining the guilt or innocence of the accused. It is here that grave concerns have to be voiced. It is difficult to prove that the tribunal doesn't like Milosevic too much, because that would mean that the tribunal is biased. But even if Milosevic were innocent, it would be very difficult for him to prove his innocence, because if he were to claim that he is not guilty (which he has not done), any evidence in support of such a claim might be interpreted as an attack on the prosecution, which in turn might be interpreted as contempt of court, which would make it almost impossible for Milosevic to prove his innocence. For instance, the presiding judge Robinson reprimanded Milosevic for attacking the prosecution for presenting misleading evidence in its cross-examination of Professor Popov on December 16, 2004.

It is true that Milosevic has had considerable latitude in conducting his defence, but it is also true that the prosecution has had the same latitude. Milosevic's cross-examination of the prosecution witnesses was tough. So is Geoffrey Nice's cross-examination of the defence witnesses. However, the equality of arms between defendants and prosecutors does not mean that the tribunal has to manipulate the trial so that both the defence and the prosecution seem to be a little bit right and a little bit wrong in equal measure. It means that both the defence and the prosecution must have the same opportunity to prove their case, so that it is possible to decide which of them is right. Perhaps only one of them is right. Perhaps the defence might be innocent. In fact, that is called the presumption of innocence, which has found its way to the Statute of the Tribunal in Article 21(3).

In his cross-examination, Milosevic was intent on revealing the inconsistencies in the witness testimonies. Even if Milosevic kept finding inconsistencies, the possibility of his innocence was not widely entertained. On the contrary, the ease with which he seemed to demolish the testimonies only made him seem like the evil genius that he had been made out to be.

A lesser man than Geoffrey Nice might have conceded defeat. Some press reports were becoming critical of the prosecution. The reason for the catastrophe was sought in the perceived incompetence of the prosecution, whereas the possibility of the innocence of the accused was still not widely entertained.

The prosecution started insisting on private sessions. Just before the private sessions became the routine, the presiding judge Richard May made the following statement on September 27, 2002:

We make it plain that any form of identification of a witness by a newspaper or indeed any other broadcast or other outlet is a contempt of this Tribunal. The purpose of these protective measures is to protect the witnesses, and for good reason. They're not made lightly. Therefore, any attempt by whatever means to identify a witness does amount to a contempt and will be the subject of sanctions.

That was a thinly veiled response to the thinly veiled admission by the prosecution on September 13, 2002 that the prosecution had trouble finding proper witnesses. Mr. Nice even managed to blame the Yugoslav government for all its woes, forgetting that the former president of Yugoslavia was in The Hague thanks to the cooperation that the prosecution said was lacking. If it was any consolation to Mr. Nice, the defense did not enjoy the situation any more than did the prosecution.

On October 4, 2002, when the trial had moved on to the Croatia indictment, Nice admitted that he had problems getting the witnesses to testify. On October 16, 2002, when judge May expressed his doubts about the propriety of the private sessions, Nice answered that the court could not understand how difficult it was to have witnesses come to testify at the ICTY. The predicament of the prosecution would probably have become unbearable, if Milosevic's health had not become a major concern in early November 2002.

The forgotten genocide

The prosecution's case was supposed to culminate in the genocide charges that crowned the indictment of Milosevic in regard to Bosnia. However, when the prosecution finally rested its case, it became evident that the proper arrangement of the hearings had taken up so much of everybody's time that the genocide charges seemed to have been forgotten. The amici curiae even requested that the charges be dropped for lack of evidence, in the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis, which was filed on March 3, 2004.

The prosecution presented its genocide evidence in secret. It filed its confidential Prosecution Response to Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis on March 23, 2004. The prosecution explained that the secrecy was necessary to guarantee the safety of its sources. It must have been a coincidence that it had a lot in common with the 92bis procedure that the prosecution had to abandon at the beginning of the trial.

Consistent to a fault

One difference between the cross-examination strategies between Nice and Milosevic has become apparent in the meantime. Nice is more interested in the consistencies than in the inconsistencies of the testimonies. The witness's person is inevitably one of the factors used in evaluating the evidence, but when it is used to explain the consistency rather than the inconsistency of the witness's testimony, the cross-examination tends to become an extended argumentum ad hominem. For instance, Nice reminded one of the defense witnesses, the former Soviet Prime Minister Nikolai Ryzhkov, that he was a Slav, which was supposed to explain why Ryzhkov was willing to testify for Milosevic in the first place .

Regardless of how tasteless Nice's remark was, he had a point. The ICTY has been criticized for many things but manning the tribunal with Slav nationalists is not one of them. One might even say that Slavs are underrepresented in the tribunal, which is all the more striking in light of the blatant overrepresentation of Britons. One only has to look around in the courtroom. The former presiding judge, Richard May, was British. His replacement Lord Iain Bonomy is another Briton. So is the head of the prosecution team Geoffrey Nice. So is Steven Kay, one of the amici curiae, who was later appointed as Milosevic's defense counsel, until the decision was revoked for all practical purposes on November 1, 2004. Ms. Gillian Higgins, one of the more recent amici, is British.

Just how delicate the balance can be is seen in what happened to the Amici Curiae Motion for Judgment of Acquittal Pursuant to Rule 98bis. Judge Robinson, who is now presiding, and Judge Kwon did in fact differ in opinions about the genocide charge. Judge Bonomy, who entered the process to replace May (after signing that he studied millions of pages in less than two months, as the International Committee for the Defense of Slobodan Milosevic has pointed out), decided with his vote against President Milosevic.

No-one could deny that the Russians bear some of the blame for being under-represented. On March 26, 2004, Russian Duma demanded the release of President Milosevic from detention almost unanimously. That must have been behind Nice's remark about Ryzhkov. Ryzhkov had submitted evidence of NATO war crimes to the tribunal on behalf of the Russian Government.

Geoffrey Nice thus has a very clear, though preconceived, idea of whose word counts and whose doesn't. Commenting on a report by the International Crisis Group that Mr. Nice was citing to contradict one of the defense witnesses, Dr Terzic, Dr Terzic pointed out that one of the members of the board of the ICG was General Wesley Clark. From the viewpoint of the prosecution, Terzic's remark must have been hopelessly inept. Clark is not prosecuted, Milosevic is. Nice should know that, because it would be the prosecution's job to prosecute him.

The prosecution did have an encounter once with General Clark, who came to The Hague to testify against Milosevic. His testimony remained confidential. The Trial Chamber admitted that the reason for the confidentiality was that they had "to protect the national interests of the US". Ryzhkov, a former Prime Minister, didn't witness in secret. Not that he had anything to hide, for instance the fact that he was a Slav, as Mr. Nice pointed out. General Clark did testify in secret "in order to protect the national interests of the US," though Clark was not even a Prime Minister. He was an official of an international organization, just like Mr. Nice.

The four-letter acronym

Whether or not to prosecute NATO leaders, including Clark, was the question that was dealt with in Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, which finally came out in June, 2000. Even if the final report was written by an apparently independent committee, it was remarkably amenable to the interests of the prosecution. The committee recommended that "no investigation be commenced by the OTP in relation to the NATO bombing campaign or incidents occurring during the campaign". The case was closed before it was even opened.

The first argument that was discussed in the report was the environmental damage caused by the bombing. That was preposterous enough, but the reasoning of the committee was even more so. The report concluded that any environmental damage would become apparent only years later, which made it pointless to open an investigation to the NATO bombing campaign. The report even wriggled around a UNEP study on the subject by stating:

Moreover, it is quite possible that, as this campaign occurred only a year ago, the UNEP study may not be a reliable indicator of the long term environmental consequences of the NATO bombing, as accurate assessments regarding the long-term effects of this contamination may not yet be practicable.

The culture at the tribunal seems to have become more open since the release of the final report. Three and a half years later, it was no secret that the confidentiality of General Clark's testimony was based on the national interests of the US. Obviously, that was also a major factor in not commencing an investigation in relation to the NATO bombing campaign.

Diverging reports

Just as the defense is not allowed to prove the prosecution wrong at the risk of being reprimanded, the defense witnesses risk ridicule if they criticize the tribunal. Again, Ryzhkov is an example. It was Mr. Nice who pointed out that Ryzhkov had criticized the prosecution for using false witnesses. Nice apparently tried to discredit the defense witness by looking for assurance of the quality of the prosecution witnesses, which he himself seems to have doubted in late 2002. Nice asked Ryzhkov to name just one such false witness, and Ryzhov did not hesitate to name Mustafa Draga. Obviously Nice could not have gone any further up that line without letting Ryzhkov re-enact a cross-examination within a cross-examination.

But maybe the tribunal is too easy a target. By now, it takes a lot more courage and mental dexterity to speak up for it. Faced with a choice of either lambasting the tribunal or congratulating it, most commentators prefer not to comment at all. One exception to the rule was a Montreal newspaper which did not quite know what to say after the defense case finally got started. Feeling obliged to justify its long silence on the matter by saying that the trial was too much like any other trial to be interesting. Anything but. Forgotten were the imposition of the defense counsel, the ensuing boycott by the defense witnesses and the revision of the tribunal's initial decision to impose a defense counsel, which made it possible for the trial to go on as if nothing had happened.

To stay true to its report that the trial was not worth reporting on, the newspaper had to omit certain passages from the testimony by Ryzhkov. Of course, some things have to be admitted. The question is which. According to the newspaper, when Nice asked Ryzhkov to mention one false witness, Ryzhkov answered that he was not a lawyer but a politician, followed by "..." When one pieces the different versions together, the "..." must stand for Mustafa Draga.

Leaving aside the question whether the omission was a sign of mental dexterity or mental weakness, it was an understated admission that the trial is not going well for the prosecution. In fact, the trial is going so badly that the newspaper had to remind the readers that Milosevic is a monster, thus underlining the fact that we don't need this trial to know that he is guilty.

Everybody agrees that the trial is a show trial. Milosevic will not be forgiven for saying it out loud.