JURIST Guest Columnist William Schabas says that the seemingly-interminable trial of Slobodan Milosevic at The Hague is a poor model for international justice, and in the long run may not serve the purpose for which it was undertaken…

The trial of Slobodan Milošević, now underway in the Hague for more than three years and likely to consume at least another three years before it finally concludes, is held out as the centrepiece of international justice, the proof of its importance and its viability. It is struggling to live up to its promise.

In December 1992, as war raged in Bosnia, United States Secretary of State Lawrence Eagleburger said that ‘[l]eaders such as Slobodan MiloÅ¡ević … must eventually explain whether and how they sought to insure, as they must under international law, that their forces complied with international law’. Eagleburger was referring to appalling reports of concentration camps where torture and sexual assault were daily occurrences, brought to international attention by journalists like Roy Gutman.

The ‘naming names’ speech was a defining moment in building momentum for the establishment of the International Criminal Tribunal for the former Yugoslavia. In February 1993, the Security Council agreed to set up a Tribunal, although it took another year before it was fully operational.

But instead of charging Milošević, the Prosecutor went after small-time war criminals. The first proceedings were directed against a local thug, Dusko Tadić, who had been involved in torture, beatings and killings of Croats and Muslims in camps in the Prijedor region of north-western Bosnia.

Many thousands just like Tadić had participated in the conflict. They could be found on all sides. None of them had figured in Eagleburger’s famous speech that had launched the Tribunal. But Tadić was the one who got caught first, and he soon dominated the work of the fledgling Tribunal.

Meanwhile, the evil leader who had prompted the whole business, Slobodan Milošević, was invited to Dayton, Ohio, in late 1995, for peace negotiations. Milošević must have been given some assurances he would not be arrested or otherwise troubled while in the United States. After all, less than three years earlier its Secretary of State had called for his arrest and prosecution.

MiloÅ¡ević remained in office after Dayton. All was going swimmingly, until the extremists in the self-styled Kosovo Liberation Army tried to break away yet another piece of the old Yugoslavia. As low-level civil war ensued, the post-Dayton honeymoon came to an end, and the ‘international community’ renewed its attacks on the Serb leader.

Full-blown war erupted in March 1999, with the NATO aerial attack on Serb cities. The Tribunal’s Prosecutor, Louise Arbour, announced the indictment of President MiloÅ¡ević for crimes against humanity and war crimes (but not genocide) committed in Kosovo, but not Bosnia or Croatia, which had, after all, provided the rationale for setting up the Tribunal in the first place.

In the aftermath of the war, Milošević lost power. In June 2001, under unbearable financial pressure from the West, Belgrade agreed to hand over Milošević to the Tribunal and he was duly flown to The Hague.

Later in 2001, as preparations were underway for an uncharacteristically speedy beginning of the great trial (many defendants have had to wait years in detention for trials to begin), the Prosecutor issued two new indictments against Milošević. One dealt with the war in Croatia, which had taken place in late 1991. The other concerned Bosnia and Herzegovina, and included a provocative count of genocide to take into account the August 2001 conviction of a Serb general for the Srebrenica massacre.

No serious or credible explanation has ever been provided for this troubling delay in indicting MiloÅ¡ević for such ‘stale’ war crimes. The whole saga smells of political manipulation.

The trial began in January 2002. MiloÅ¡ević insisted upon acting in his own defense, without counsel. He is a skilled lawyer himself, and has proven that he can do an able job. Presiding judge Richard May readily accepted that this was his fundamental right. After all, the Tribunal’s Statute, which is modelled on human rights instruments, declares: ‘In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality… to defend himself in person or through legal assistance of his own choosing…’

The trial plodded along, punctuated by short suspensions because of MiloÅ¡ević’s health problems. He has high blood pressure. I suppose that if I had been charged with genocide, I would too!

As the Prosecution case neared its end, in early 2004, Presiding Judge Richard May announced he was resigned due to ill health. May was fatally ill, and died within months.

Only a year earlier, the Tribunal had changed its rules to allow a trial to continue with a replacement judge, even without the consent of the accused. In January 2004, weeks before May announced he was leaving, the Tribunal’s president had said the new rule could not be used in a long trial, because there would be too much catching up to do for the replacement judge. But starting the MiloÅ¡ević trial de novo was a frightening option, and it was decided to appoint a new judge. He spent a few weeks reviewing the transcripts of a two-year trial, and then declared he was ready to rock and roll.

The renewed bench announced it was reconsidering Judge May’s earlier decision to allow MiloÅ¡ević to defend himself. The defendant’s infirmities were causing delays, said the judges, and this argued for an exception to the fundamental right of self-defence set out in the Statute. They reasoned by analogy. The right to defend oneself was subject to exceptions, they said, giving as an example the unruly accused.

The argument was flawed. Nobody was claiming Milošević was misbehaving. Sure, his cross-examinations were aggressive and his challenges to the judges withering. But putting ill health on a part with intentional misconduct was, in effect, to discriminate against Milošević based on disability. In effect, the judges were saying that the right to defend oneself belonged only to the young and restless, not the aging and infirm.

Indeed, whether or not Milošević defends himself in person or by appointed counsel, he is still entitled to direct the defense and to make the appropriate decisions about trial strategy. If he is too ill to be present and do this, the trial cannot go on, even with a defense lawyer imposed by the bench.

The Trial Chamber’s decision to impose counsel was overturned on appeal. The whole business of forcing counsel on MiloÅ¡ević, which was intended to accelerate the trial, actually resulted in many months of additional delay. The judges had shot themselves in the foot.

None of this helps the International Tribunal in its historic role of bringing justice to the
Balkans. Decades from now, Serb nationalists will point to the ugly procedure and argue that the whole business was a frameup.

Sixty years ago, Nuremberg delivered justice to Nazi war criminals. Some critics have decried it as ‘victor’s justice’, but by and large it has stood up to the attacks. Most important, modern Germany accepts the trial and its lessons.

Will the same be said of the Milošević trial in half a century? The comparison is a telling one. If history now gives Nuremberg five stars, will it be as kind to The Hague?

William Schabas is professor of human rights law at the National University of Ireland, Galway, and Director of the Irish Centre for Human Rights. He is the author (with Michael Scharf) of Slobodan Milosevic on Trial: A Companion (Continuum International Publishing Group, 2002).
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