LEARNED FROM THE BALKAN CONFLICTS"
By Judith Armatta, Esq.
Coalition for International Justice
October 16, 2004
I would like to begin with an example from the Milosevic trial
which is suggestive of what I consider the major lesson to
be learned from it for other war crimes trials of state leaders.
The followng exchange between the late Judge Sir Richard May,
then presiding, and the Accused, Slobodan Milosevic, occurred
during the Accused's typically irrelevant cross examination
of a witness who testified about a massacre of nearly 90 Bosnian
Muslim men. He was one of three survivors. His father and
three brothers were not so lucky.
Rather than question him about the massacre, Mr. Milosevic
asked who started the war and whether he knew about President
Izetbegovic's plans for an Islamic Republic. After some time
in this vein, Judge May interrupted to remind the Accused
the Court is not helped by general political questions. Tellingly,
Mr. Milosevic answered defiantly: "I will ask the questions
I feel I need to. It doesn't matter if it assists you. I need
to get to the truth." Attempting to reassert the Court's
authority, Judge May responded, "If it doesn't assist
us, you can't ask it." The Accused never backed down
from his position.
To the extent that any of his cross examination was relevant
to a witness's testimony or the charges against him, it was
accidental. As Mr. Milosevic announced from the beginning,
he had no intention of defending himself against charges brought
by a court he did not recognize. However, he would use the
opportunity presented by the trial to bring his own charges
against those he contended had committed crimes against Serbia
and the Serbs. He would do this by availing himself of the
right of self-representation.
This was never a legitimate position. A criminal trial is
designed to determine whether an accused is guilty of the
crimes charged, in Milosevic's case 66 counts of crimes against
humanity, war crimes and genocide. What is called a tu quoque
defense is not recognized by the Tribunal -- meaning maybe
I'm guilty but others have done the same or worse. Nor is
it proper to invoke the recognized right of self-representation
as a cover to secure a forum for advancing a political agenda.
The moment Mr. Milosevic informed the Court he intended to
use the trial for his purposes, it should have acted to stop
him. At a minimum, appointment of standby counsel, who could
take over when the Accused proved unable or unwilling to mount
a proper defense, would have gone a long way to prevent the
excessive delays of a trial that is in its third year and
to avoid the problems that have recently occurred as a result
of the Court firmly, though belatedly, asserting its control.
This is not to blame the Trial Chamber for choosing the approach
it did when faced with Mr. Milosevic’s defiance. We
have the advantage of hindsight, as well as the luxury of
observers who do not bear the responsibility and consequences
of our strongly held positions. Faced with an unprecedented
situation in arguably the most important war crimes trial
in an international tribunal since Nuremberg and Tokyo, ICTY
Trial Chamber III stepped off a precipice not knowing where
it would land – whether on firm ground or in a swamp.
The Chamber's motives were good. It thought that by allowing
Mr. Milosevic to speak within the trial format, he would gradually
become involved in presenting a real defense. The Court's
fault, if fault there be, was in its belief that a man fairly
treated will respond in kind. Sadly, that is not always so
-- and rarely, if ever, with a former authoritarian head of
state used to getting his way.
The results of allowing the Accused to participate on his
terms are a trial well into its third year with the defense
case barely begun, a trial that often appeared to be controlled
by the Accused rather than the judges, and survivor witnesses
who were re-traumatized by the Accused's aggressive and sometimes
abusive cross examination. As the Court bent over backwards
to accommodate the Accused, they allowed him substantially
more time for cross examination than the prosecution took
for direct examination. Though repeatedly admonishing him
about repetitive and irrelevant questioning and speech-making,
the Chamber's lack of follow-through encouraged the Accused
to continue his tactics. His occasionally proper cross examination
lured the Court into believing he would change.
The stress of conducting his own case took its toll on Mr.
Milosevic's health. During the prosecution's case the trial
was adjourned 12 times for a total of 66 days and the trial
schedule reduced to three days a week due to the Accused's
illness. When Mr. Milosevic demanded two years' adjournment
to prepare his defense case and was refused, he still managed
to double the adjournment time through illness and manipulating
his medications. Five times the Trial Chamber attempted to
begin the defense case and five times it had to adjourn because
of Mr. Milosevic's illness. In the meantime, Presiding Judge
Richard May was diagnosed with cancer and died within a few
Given these circumstances, the Trial Chamber, which had repeatedly
considered and rejected prosecution motions to appoint counsel
to represent the Accused, undertook a radical review of the
trial. Based on expert medical reports that concluded Mr.
Milosevic was no longer fit enough to continue representing
himself, and recognizing its duty to assure a fair and expeditious
trial, the Trial Chamber finally took the step it had resisted
for so long. It ruled that the Accused must be represented
by counsel for the continuation of the trial.
Mr. Milosevic is presently defying the court order on the
manner in which his defense case will be carried out. He is
as scornful of his health as he is of the Court's order. He
refuses the Court's standing invitation to appoint defense
counsel of his choice. He refuses to communicate or cooperate
in any way with defense counsel who were appointed by the
Court and has also forbidden his associates to communicate
with them. He steadfastly refuses the Court's repeated invitation
to question witnesses himself on relevant matters not covered
by counsel. Mr. Milosevic asserts he will not participate
in the trial unless the Court once again allows him to represent
According to his Legal Associates, about 265 of his planned
witnesses have also indicated their refusal to testify unless
the Accused is allowed to resume representing himself. This
amounts to a rather widespread defiance of the Tribunal --
which obstructs the trial and risks bringing it to an impasse.
Meeting such widespread resistance among witnesses, Defense
Counsel find it difficult, to say the least, to put forward
For those who accept the rule of law, including the legitimacy
of the UN-established International Criminal Tribunal for
the former Yugoslavia, the proper response to a decision with
which one disagrees is to file an appeal. Indeed, court appointed
counsel have filed an appeal on Mr. Milosevic's behalf. Rather
than wait for the Appeals Chamber to render its decision,
however, Mr. Milosevic and his allies have taken extra-legal
measures to stop the trial -- the Accused by refusing to communicate
with the defense lawyers and prohibiting his legal associates
from doing so as well; his witnesses by refusing to testify.
Clearly, their message is 'this trial will not go forward
except under Mr. Milosevic's terms.'
It is wholly likely that if the Appeals Chamber upholds the
Trial Court order, the Accused and his supporters will continue
to defy the Tribunal. Mr. Milosevic has never wanted a trial.
He has been clear he wants a forum.
The Accused and his supporters have focused public attention
on what they consider his absolute right to represent himself.
The Trial Chamber ruled that the right is not absolute, and
is subject to the more fundamental right to a fair and expeditious
trial, which, in this instance, it found could not be achieved
by allowing Mr. Milosevic to continue representing himself
in light of his chronic illness and deteriorating health.
In all circumstances, the Court is obliged to act in the interests
of justice. Whether one disagrees with the Trial Chamber's
ruling or not, it is the Appeals Chamber who will decide if,
in ICTY jurisprudence, the right to represent oneself should
be absolute or limited.
Mr. Milosevic cynically uses his right to represent himself
to charge the Court with violating his basic rights and to
garner popular support. By claiming his rights are being violated,
Mr. Milosevic distorts reality and attempts to manipulate
the Court and the public.
Some believe Mr. Milosevic should be allowed to use the trial
to advance his political views. After a recent lecture I gave
on this topic, some in the audience argued it is no worse
than having him sit silently as court-appointed counsel present
a defense he does not want.
Why, then, have a trial at all? If he is allowed to create
and control the process in which he has been called to answer
very serious charges of criminal wrongdoing, it, in fact,
becomes something other than a trial. We are no longer operating
under rule of law, but under the rule of men -- and a man
who is accused of very grave crimes, at that.
Certainly, Mr. Milosevic has the right to choose a defense
he considers appropriate -- but within the parameters of the
law. Charging that there is a world conspiracy against the
Serbs is not a legitimate defense to charges that he is individually
guilty of committing genocide and crimes against humanity
by taking part in a plan to ethnically cleanse large parts
of Bosnia, Croatia and Kosovo of their non-Serb populations.
While the Trial Chamber did not base its decision to impose
counsel on the Accused's refusal to mount a legitimate defense,
Judge Robinson, now presiding, stated his health was not the
only reason for the decision. It also became necessary to
preserve the prestige, reputation and integrity of the Court,
for if the Court were to continue allowing Mr. Milosevic to
represent himself, knowing the trial would last at least two
more years and be interrupted 12 times as it has thus far,
the Court would be acting irresponsibly and would bring the
Tribunal into disrepute.
In the final analysis, the Trial Chamber should have appointed
at least standby counsel from the first moment Mr. Milosevic
declared he didn't recognize the Tribunal and intended to
use the trial to present his political agenda. The Court's
initial decision was a mistake, as anyone familiar with Milosevic
the negotiator during the 1990's would have known. This is
an important lesson for international criminal tribunals faced
with similar defiance by defendants in the future -- defiance
which can be expected from those formerly at the apex of power
when they are called to account for crimes.
Indeed, in three other cases before the Yugoslav and Rwanda
Tribunals and the Special Court for Sierra Leone the courts
have acted quickly to assert their authority in the face of
similar challenges from the accused. In two of them, accused
boycotted their trials to protest court decisions regulating
the manner in which they could conduct their defense. Both
the Rwanda and Sierra Leone Courts ruled it did not violate
the accuseds' rights to continue the trial in their absence,
since the accused had chosen not to be present.
Vojislav Seselj, leader of the Serbian Radical Party and sponsor
of paramilitary units during the recent wars, now awaiting
trial in The Hague on 15 counts of war crimes and crimes against
humanity, also denies the legitimacy of the proceedings that
have been brought against him before the ICTY and insists
on representing himself. Having seen the result of allowing
Mr. Milosevic to have his way, Trial Chamber II appointed
standby counsel for Mr. Seselj shortly after his initial appearance.
Should the Accused attempt to obstruct the trial process,
standby counsel will take over.
These cases, as well as the Milosevic trial, illustrate the
very serious problem that international criminal tribunals,
whether ad hoc or permanent, can expect to face, that is,
a refusal by those they charge, particularly those in leadership
positions, to submit to legal authority. The international
tribunals must be prepared to respond in ways that advance
the rule of law. If they do not, and the legal process established
to end impunity is allowed to be hijacked to the purposes
of those it seeks to bring to account, then international
humanitarian law itself will be brought into disrepute.
While we focus on the accused and his rights at trial, other
interests are involved, not least of which are those of the
public in seeing justice done and those of people who have
been victimized by the crimes Mr. Milosevic is alleged to
Defense counsel have argued to the Court that the only rights
which matter in a criminal trial are those of the Accused.
If that is so, where do victims look for justice? If the trial
is handed over to the Accused as his political platform, what
becomes of the victims' need for justice? This is not to prejudge
Mr. Milosevic as guilty, but to argue that the victims have
a right to a fair determination of his guilt for the horrible
crimes committed against them.
While victims' rights and interests have not been explicitly
provided for in the ICTY Statute as they have in the statute
of the permanent International Criminal Court, the ICTY cannot
fulfill its mission without giving them serious consideration
at all stages of the process. How can there ever be security
and reconciliation in the former Yugoslavia where those who
have suffered so grievously feel disregarded? How can there
be reconciliation where a person accused for the harm done
to them is allowed to hijack the trial to serve his purposes,
thereby denying them a fair determination of his guilt?
Finally, people frequently ask me whether I think the trial
of Slobodan Milosevic has had a negative effect in the former
Yugoslavia. Has it rallied Serbs to the defense of the leader
they so recently threw out of office? Has it disillusioned
Bosniaks, Croats, Kosovar Albanians and Serbs who consider
Milosevic responsible for so much of their suffering? Will
this trial contribute to reconciliation or will it fuel more
Quite simply, I don't know. It would be arrogant and presumptuous
of me to even attempt to answer this question. I would like
to make two points, however. One, the answer may not be available
for many years, it may not be simple and it may not be the
same for everyone. Two, opinion makers -- journalists, commentators,
politicians and academics -- have a responsibility to the
general public to de-mystify the rather arcane legal proceedings,
as well as to expose efforts to manipulate them by those who
would profit from the tribunals falling into disrepute.
The ICTY and other international war crimes tribunals are
not perfect. They cannot be a goddess born whole and complete
from the head of a god. That's myth. They are born of great
effort with errors in their conception. They crawl into the
world on all fours, not yet able to stand alone. They reflect
our inadequacies, our differences and compromises. When they
err and disappoint, however, we should not respond by destroying
these new creations, but by giving them the constructive criticism
and support they need to become what we want them to be --
institutions that implement our desire for the rule of law
to replace the rule of impunity. What this conference has
set out to do is a positive step in that direction.
Thank you for your attention.