The prosecution’s case-in-chief
Notwithstanding the scope and size of the case, the pre-trial phase, which lasted only 7 months, was relatively brief, and the trial commenced on 12 February 2002 (Prosecutor v. Milošević 4 February 2002).
Length of Prosecution case
On 10 April 2002, the Trial Chamber issued, proprio motu, an oral decision directing the Prosecution to conclude its case, subject to “the unexpected” events such as illness or other unforeseen circumstances, within 12 months. This was in addition to the 2 months it had already used. The Trial Chamber expressed the view that the Prosecution case should not continue for more than 14 months in total (Hearing 10 April 2002, T. 2784 et seq). Six days later, the Prosecution requested leave to file an interlocutory appeal of this order pursuant to Rule 73(D).Footnote 24 It argued that the Trial Chamber had invaded the independence of the Prosecutor provided for in Article 16(2) of the Statute (Prosecutor v. Milošević 16 April 2002a).Footnote 25
On 25 April 2002, the Appeals Chamber issued its decision. It held that, even if Rule 73(D) had been applicable in this case, the Chamber was not satisfied that the conditions for its application had been met (Prosecutor v. Milošević 25 April 2002a). On 16 May 2002, the Appeals Chamber issued its legal reasons. It held that every court possesses the inherent power to control the proceedings during the course of the trial and that the Trial Chamber, in limiting the time that the prosecution had to present its case, had not interfered with the independence of the Prosecution (Prosecutor v. Milošević 16 May 2002).Footnote 26
The sheer scale of the case led to experiments in procedural mechanisms that would allow the trial to be completed within reasonable parameters. Most of these innovations related to reducing the amount of time in court that was required for the admission of evidence.
Admission of evidence under Rule 92 bis
Rule 92 bis had been adopted in 2000 by the judges of the Tribunal in order to provide a vehicle for the admission of evidence in lieu of oral testimony, when certain conditions were met.Footnote 27 Whether this rule was to be applied in the Milošević trial was a matter that was litigated by the parties early on in the Kosovo phase of the case.
After having heard the parties, the Trial Chamber decided to admit the written evidence of many witnesses relevant to the Kosovo case. In doing so, the Trial Chamber stated,
The Kosovo Indictment expressly states that the Prosecution does not intend to suggest that the accused committed any of the crimes charged personally in a physical sense. The phrase “acts and conduct of the accused” in Rule 92bis is a plain expression and should be given its ordinary meaning: deeds and behaviour of the accused. It should not be extended by fanciful interpretation. No mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else. Had the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so. The fact that conduct is that of co-perpetrators or subordinates is relevant to whether cross-examination should be allowed and not to whether a statement should be admitted. Consequently, having examined the 23 written statements, the Trial Chamber finds that the statements go to proof of matters other than the acts and conduct of the accused (Prosecutor v. Milošević 21 March 2002, para. 22).
The holding of the Trial Chamber set the standard in ICTY jurisprudence for what “acts and conduct” means under Rule 92 bis. The Trial Chamber then went on to require cross-examination of the witnesses because
[a]nalysis of the statements reveals that all relate to alleged attacks by Serb forces on Kosovo municipalities and the resulting deportations and killings. The accused has put this evidence into issue and vigorously put forward a contrary case. There is, therefore, an important issue for the Trial Chamber to try. The evidence relates to a “critical element of the Prosecution’s case” or, put another way, to a live and important issue between the parties, as opposed to a peripheral or marginally relevant issue (Prosecutor v. Milošević 21 March 2002, para. 24).
Judge Robinson issued a concurring opinion, expressing his view that, once a trial chamber determines that the evidence goes to a “critical element” of the Prosecution case, the chamber does not have discretion to admit the evidence without allowing the accused to cross-examine the witness (Prosecutor v. Milošević 21 March 2002).Footnote 28
The Trial Chamber would again take up these issues when it dealt with a Prosecution motion to admit written evidence in lieu of oral testimony in relation to a crime site in Foča, Bosnia. On 10 January 2003, the Prosecution requested the admission of transcripts and accompanying exhibits of evidence given by 11 witnesses who previously testified in the Krnojelac and Kunarac cases in lieu of viva voce evidence. The Prosecution also sought an order that the transcripts be admitted without cross-examination, as Rule 92 bis permitted under paragraph (E). The Prosecution submitted that the evidence dealt exclusively with crime-base events alleged to have occurred in the Foča municipality and not with the acts and conduct of the accused or a critical element of the case. On 28 April 2003, the Trial Chamber heard oral arguments on the motion and on 8 May 2003 rendered an oral ruling. On 30 June 2003, the Trial Chamber issued its written decision on the motion, holding that the right of an accused to examine, or have examined, witnesses against him is not an absolute one (Prosecutor v. Milošević 30 June 2003, para. 24).
The Trial Chamber decided to admit several of the transcripts without requiring the witnesses to appear for cross-examination. It did so because the evidence was purely “crime base” evidence relating to the takeover of a municipality and, as such, did not involve such a critical element or important issue as to require further cross-examination. In so far as it related to an issue between the parties, it was not of such a nature that it could not be adequately covered by cross-examination in the earlier proceedings. The Trial Chamber also found that the cross-examinations in the earlier proceedings were undertaken on behalf of an accused with a substantially common interest to serve as Milošević, namely to oppose and contest the evidence about the takeover of Foča and to question the credibility of the witnesses. Finally, the Trial Chamber accepted the Prosecution submission that the cross-examination in the previous cases was adequate, although observing that “quantity is not a measure of the quality of cross-examination” and that “the measurement of adequacy cannot be calculated to a nicety” (Prosecutor v. Milošević 30 June 2003, paras. 39–42).
In respect of the some of the witnesses, the Trial Chamber also noted that it would be unreasonable to insist upon their return to the Tribunal to give evidence again. Several of the witnesses were the victims of multiple rapes, and further cross-examination would run the risk of re-traumatisation. The Chamber held,
Cross-examination should not be permitted mechanically and as a matter of course. Where the rights of the accused are protected, as in this case, by earlier cross-examinations, the balance, as here, should be struck on the side of the victims and witnesses (Prosecutor v. Milošević 30 June 2003, paras. 46–48).
The Chamber made it clear that, in circumstances where issues arise later in the trial that called into question aspects of the testimony given in prior proceedings, the witness could be called and subjected to cross-examination (Prosecutor v. Milošević 30 June 2003, para. 49).
Judge Robinson did not agree with the majority’s decision to admit the transcripts without giving Milošević the opportunity to cross-examine the witnesses. He expressed his position in a lengthy dissenting opinion. According to Judge Robinson,
[t]he faculty for a Trial Chamber to determine that cross-examination in a previous trial is adequate such that cross-examination in an ongoing case may be dispensed with is, in my view, unduly intrusive in relation to the right of an accused person to determine his own defence in a system that, despite innovative procedures drawn from the civil law inquisitorial system, remains essentially adversarial. The intrusiveness of this role may upset the balance between the two legal systems on which the Tribunal’s sui generis legal system is built (Prosecutor v. Milošević 30 June 2003, para. 40).
Judge Robinson ultimately concluded that, in all the circumstances, a decision to admit the transcripts without requiring the witnesses to appear for cross-examination resulted in a procedure that achieved expeditiousness at the expense of fairness and thus was in breach of Articles 20 and 21 of the Statute (Prosecutor v. Milošević 30 June 2003, para. 44(vi)).
Admission of evidence under Rule 89(F)
In addition to the time-saving procedural mechanisms of Rule 92 bis, the Prosecution responded to the time constraints placed upon it by attempting to find innovative procedural methods of introducing evidence that would utilise the least time possible during court hearings. The new modalities in fact enabled the Prosecution to introduce huge amounts of evidence in writing, rather than leading it viva voce from witnesses on the stand. Although the Trial Chamber disagreed with some of the appropriateness of these methods, it granted certification of interlocutory appeals in order to ensure that the Appeals Chamber set right any errors it had made. This is, in fact, what happened in respect of the Prosecution’s attempts to utilise Rule 89(F) in such a manner.
Rule 89(F) provided that, “[a] Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.” The provision had been amended in December 2000 in order to modify the principle of orality that had been there before. At the same time as this amendment, the Judges adopted Rule 92 bis in order to deal with the admission of a special kind of hearsay evidence, witness statements and transcripts from previous trials that did not go to the acts and conduct of the accused. However, there were strict attestation requirements connected to the admission of such evidence, with which the Prosecution wished to dispense. The Prosecution argued that statements of a witness, made at any time and not in accordance with the attestation requirements, were nevertheless subject to admission under Rule 89(F), provided that the witness was available to attest on the stand that the statement was in fact his and was available for cross-examination.
In April 2003, the Trial Chamber denied a Prosecution motion to submit the evidence-in-chief of some of its witnesses in writing, without the need to fulfil the attestation requirements of Rule 92 bis (Prosecutor v. Milošević 16 April 2003). The Trial Chamber held in its written decision that “under the present Rules, such written statements are only admissible under Rule 92 bis and by no other means” (Prosecutor v. Milošević 16 April 2003, p. 2).Footnote 29 In May 2003, the Trial Chamber certified an interlocutory appeal of its decision (Prosecutor v. Milošević 6 May 2003a). In September 2003, the Appeals Chamber issued its decision on the matter. It held that, where the witness was present before the Trial Chamber and orally attested to the accuracy of his or her statement, the evidence entered into the record could not be considered to be exclusively “written” within the meaning of Rule 92 bis. The Appeals Chamber explained that the testimony of a witness constituted a mixture of oral and written evidence and that the appearance of the witness in court to attest to a written statement was a crucial factor that rendered Rule 92 bis inapplicable. According to the Appeals Chamber, the fact that there should be greater safeguards when the evidence relates to the acts and conduct of the accused was a factor that a Trial Chamber could take into account in determining whether to admit written evidence under Rule 89(F) or what weight to attach to the evidence. Nonetheless, “the appearance of the witness in court to orally attest to the accuracy of the tendered statement is an important safeguard in itself because the witness is certifying the accuracy of the statement before the Court and is available to answer questions from the bench” (Prosecutor v. Milošević 20 September 2003, paras. 16, 19).
The Appeals Chamber thus allowed the appeal because, as a matter of law, the Rules allowed for the admission of a written witness statement under Rule 89(F) when the witness was present in court, was available for cross-examination and any questioning by the judges, and attested that the statement accurately reflected his or her declaration and what he or she would say if examined. The Appeals Chamber returned the matter to the Trial Chamber for action in accordance with its decision. The Trial Chamber subsequently admitted witness statements under Rule 89(F) so long as the information therein did not go to Milošević’s acts and conduct.Footnote 30
The jurisprudence of the Appeals Chamber in this interlocutory decision was later codified in a newly adopted Rule—Rule 92 ter. This Rule quickly became—and remains to this day—the standard manner in which the majority of witnesses’ evidence was admitted in the Tribunal’s cases, thereby reducing the time needed to lead evidence from witnesses on the stand. It is now rare for the Tribunal to hear from “pure” viva voce witnesses, and even witnesses who appear in court to give evidence usually have prior statements or transcripts admitted into evidence along with their in-court testimony, a phenomenon that has come to be known as “hybrid witnesses”.
Rule 92 ter has also been adopted verbatim by the Judges of the International Residual Mechanism for Criminal Tribunals, the successor of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), as Rule 111 (MICT/1 2012). This procedural innovation will therefore be available for any trials conducted by the Mechanism of ICTR fugitives, persons accused of contempt before the Mechanism, and any re-trials ordered by the Appeals Chamber.
Admissibility of investigator’s summary evidence
The Prosecution also attempted to admit evidence in the form of a summary by an investigator. On 30 May 2002, the Trial Chamber rejected the admission into evidence of a summary of witness statements and other material related to events alleged to have taken place in Račak, which had been prepared by an investigator of the Prosecution (Hearing 30 May 2002, T.5940–5944). In so deciding, the Chamber first referred to an earlier decision it had rendered in relation to evidence that the Prosecution had proposed to be given by one of its investigators who, after reading a series of witness statements, had come to various conclusions. The Chamber had excluded the evidence on the ground that “it was hearsay evidence of no probative value, which amounted to no more than a repetition of the Prosecution case” (Hearing 30 May 2002, T.5941, referring to Hearing, T.672–673).
With this prior ruling in mind, the Chamber held:
A further reason may be given for excluding this type of evidence, at least in relation to the conclusions of the witnesses. That is that for a witness to give his or her conclusions upon the evidence is to trespass on the function of the Trial Chamber. It is for the Trial Chamber to decide which evidence to accept and which to reject and what conclusions to draw from the evidence. Therefore, any evidence which trespasses on those functions is normally to be excluded (Hearing 30 May 2002, T.5941–5942).
The Prosecution appealed the decision of the Trial Chamber, and the Appeals Chamber dismissed the appeal (Prosecutor v. Milošević 30 September 2002).
In another attempt to admit evidence in the case using the least amount of time in court, the Prosecution tested the limits of a trial chamber’s ability to take judicial notice of adjudicated facts pursuant to Rule 94. Paragraph (B) of this Rule provided that, “[a]t the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.”
On 25 April 2002, the Prosecution filed a motion, pursuant to Rule 94(B), requesting that the Trial Chamber take judicial notice of facts related to events that occurred in the municipality of Brčko (Prosecutor v. Milošević 25 April 2002b).Footnote 31 On 5 June 2002, the Trial Chamber issued its decision, holding that for a fact to be capable of admission under Rule 94(B), it should be truly adjudicated and not based on an agreement between parties to previous proceedings, such as agreed facts underpinning a plea agreement (Prosecutor v. Milošević 5 June 2002). Several months later, the Prosecution requested that the Trial Chamber take judicial notice of facts derived from four cases that had been the subject of a final judgement on appeal: Prosecutor v. Tadić, Prosecutor v. Delalić et al., Prosecutor v. Kupreškić et al., and Prosecutor v. Kunarac et al.Footnote 32 In April 2003, the Trial Chamber rendered its decision, in which it admitted some of the facts in question while rejecting others on the basis that they could have been the subject of “reasonable dispute” (Prosecutor v. Milošević 10 April 2003). Later in that month, the Trial Chamber granted the Prosecution’s request for certification of an interlocutory appeal of that decision. In October 2003, the Appeals Chamber “returned the matter to the Trial Chamber for it to review the taking of judicial notice of the adjudicated facts” (Prosecutor v. Milošević 28 October 2003).
On 6 November 2003, the Trial Chamber asked the parties and Amici Curiae to make submissions on the effect of the Appeals Chamber ruling (Prosecutor v. Milošević 6 November 2003). The Amici Curiae submitted that the Prosecution should be put to the task of persuading the Trial Chamber that a revised and less extensive list of facts could be admitted without compromising the right of Milošević to a fair trial (Prosecutor v. Milošević 18 November 2003). The Prosecution adhered to its initial application (Prosecutor v. Milošević 26 November 2003).
In December 2003, the Trial Chamber issued another decision on this matter. It held that the admission of adjudicated facts on a wholesale basis would raise the possibility of placing a heavy burden upon Milošević in the preparation and conduct of his case. The Trial Chamber was also concerned that attempts by Milošević to rebut these facts could absorb considerable time and resources during the course of the proceedings, thereby undermining judicial economy and expeditiousness (Prosecutor v. Milošević 16 December 2003a). The Trial Chamber admitted some of the facts set out by the Prosecution, relating to Foča and Prijedor, and decided that they could be challenged by Milošević.
Admission of intercepted communications
In September 2002, during the course of a witness’s testimony, the Prosecution indicated that it wished to admit an intercepted conversation as evidence. Milošević objected, arguing that the conversation was obtained illegally and that “anything that is illegal can be introduced” (Hearing 27 September 2002, T.10389). Later, the Trial Chamber heard oral submissions from Milošević. He did not contest that all the recordings were made on the territory of Bosnia and was not challenging the authenticity of the recordings at this stage but argued that all recordings were intercepted illegally without the authority of the state agency in-charge (Hearing 30 September 2002, T.10412). In October, the Prosecution filed its response, requesting that the Trial Chamber admit into evidence a number of intercepted communications concerning the Bosnia phase of the trial (Prosecutor v. Milošević 31 October 2002). On 19 November and 10 December 2002, the Trial Chamber held further hearings.
Thereafter, a number of intercepted communications were led through different witnesses, including a witness who was called to verify the procedure and authenticate all the intercepts. In all, 245 intercepts were marked for identification, pending admission into evidence. The Trial Chamber then turned to the task of deciding the admission of these intercepts into evidence. On 16 December 2003, the Trial Chamber admitted the 245 intercepts into evidence on a prima facie basis and reserved its final ruling with respect to admissibility subject to a determination of the relevance and reliability of the intercepts (Prosecutor v. Milošević 16 December 2003b). Upon the Trial Chamber’s request, the Prosecution submitted on 19 January 2004 its analysis (with respect to relevance and reliability), and the Amici Curiae on 16 February 2004 identified 15 intercepts to be assessed for their authenticity by a court-appointed expert. The court-appointed expert found that the intercepts were substantially complete and that there was no evidence that they had been tampered with. In June 2004, the Trial Chamber issued its decision, holding that some of the intercepts were relevant and some were not and admitting the ones that were (Prosecutor v. Milošević 14 June 2004, p. 3).
Rule 70: conditions placed upon evidence by states
Rule 70(B) provides that, if the Prosecution is in possession of information that has been provided to the Prosecutor on a confidential basis and used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecution without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.Footnote 33 Paragraph (C) of Rule 70 provides that, if, after obtaining the consent of the person or entity providing information, the Prosecution elects to present as evidence any testimony, document, or other material so provided, the trial chamber may not order either party to produce additional evidence received from the person or entity providing the initial information. Moreover, a trial chamber is precluded by paragraph (C) from ordering the attendance of witnesses or requiring the production of documents in order to compel the production of such additional evidence. Paragraph (D) provides that, if the Prosecutor calls a witness to introduce in evidence any information provided under Rule 70, the trial chamber may not compel that witness to answer any question relating to the information or its origin, if the witness declines to answer on grounds of confidentiality.
In practice, the application of this provision of the Rules of Procedure and Evidence was somewhat obscure, until it was clarified by the Appeals Chamber during the Milošević case.
In May 2002, the Prosecution requested the Trial Chamber to order, pursuant to Rule 70, that (i) a representative of a government furnishing confidential information be present in court during the evidence of a particular witness, (ii) the Prosecution’s questioning be limited to a detailed outline agreed to by the government, and (iii) the scope of cross-examination be limited to the scope of direct examination (Hearing 30 May 2002, T.5953). In its submission before the Trial Chamber, the Prosecution asked for the witness to be heard in accordance with paragraphs (C) and (D) of Rule 70 and that two representatives of the relevant government be in court during the testimony of the witness, to deal with matters of national security that might arise.
On 25 July 2002, the Trial Chamber held that, in order for paragraphs (C) and (D) of Rule 70 to apply, the evidence of the witness had to satisfy certain criteria set down in paragraph (B) of the Rule. If the Chamber was not satisfied that these criteria were met, then Rule 70 did not therefore apply to the evidence of the witness. However, recognising the right of states to protect their national security interests, the Chamber ordered protective measures designed to match those sought by the Prosecution on behalf of the government. Specifically, the Prosecutor was ordered to tailor its examination-in-chief to exclude confidential information, cross-examination was not to be permitted beyond the subject matter of evidence-in-chief, questions as to credibility were permitted only if answers were not liable to reveal confidential information, and the two government representatives were permitted to be present (Prosecutor v. Milošević 25 July 2002; see also 23 October 2002, paras. 10–11).
Both the Prosecution and the relevant government appealed this decision. On 23 October 2002, the Appeals Chamber issued its decision and held that the determination of “whether information has been provided in accordance Rule 70(B) and so benefits from the protections afforded by that Rule” is limited to an assessment of “whether the information was in fact provided on a confidential basis” (Prosecutor v. Milošević 25 July 2002; 23 October 2002, para. 29). Once ascertained that the prospective testimony of a state official was “in fact provided on a confidential basis”, the state then enjoyed the full protection of Rule 70, and the testimony may not be introduced into evidence without the state’s consent. The Appeals Chamber therefore interpreted the provisions of Rule 70 to mean that a state is in full control of information it provides to a party before the Tribunal (Prosecutor v. Milošević 23 October 2003a, paras. 25–29).
In addressing the possibility that states might withhold relevant information from an accused, the Appeals Chamber observed that there were two safeguards to ensure an accused’s right to a fair trial in this context. First, it held that a trial chamber does have limited authority to police the application of the rule, by determining whether the information was “in fact provided on a confidential basis”; if in doubt, the chamber should hear the information provider and the prosecution on the matter (Prosecutor v. Milošević 23 October 2003a, paras. 26, 29, 31). Yet this enquiry is of “a very limited nature” (Prosecutor v. Milošević 23 October 2003a, para. 29) and does not include any scrutiny as to the basis for the confidentiality, unlike compelled state documents under Rule 54 bis (F)(i), which will be discussed below. Second, the Appeals Chamber found that Rule 70(G), which empowers a chamber to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”, gives a chamber “a tool to protect [the fair trial] requirement if the Rule has been misused” (Prosecutor v. Milošević 23 October 2003a, para. 26).
The ruling of the Appeals Chamber therefore clarified the meaning and application of Rule 70, thereby providing more certainty to parties and states dealing with the provision of information in relation to the cases before the Tribunal.
Rule 54 bis: litigation between the Prosecution and Serbia and Montenegro over the production of documents
Throughout the trial, there was vigorously contested litigation between the Prosecution and the government of Serbia and Montenegro, formerly the FRY, over the production of documents relevant to the core proceedings.Footnote 34 This litigation pursuant to Rule 54 bis took place from almost the very beginning of the trial and was still being pursued at the time of Milošević’s death and the subsequent close of the proceedings (Prosecutor v. Milošević 14 March 2006).
When the Security Council adopted Resolution 827 on 23 May 1993, it exercised its powers under Chapter VII of the UN Charter, in the form of Article 29 of the Statute, to obligate states to cooperate with the ICTY in its investigations and prosecutions. Moreover, states were enjoined to “comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to … the taking of testimony and the production of evidence…” (Statute of ICTY, Art. 29; see UNSC Res 827 1993; UNSC Res 955 1994). The UN Secretary-General, in his report accompanying the Statute, stated in relation to Article 29 that the establishment of the ICTY pursuant to Chapter VII “creates a binding obligation on all States to take whatever steps are required to implement” a decision of the Tribunal (UNSC 1993, para. 125).Footnote 35
The ICTY’s power to order the production of documents from a State was confirmed by the ICTY Appeals Chamber in Prosecutor v. Blaškić (Prosecutor v. Blaškić 29 October 1997, para. 26) and was later codified in Rule 54 bis.Footnote 36 A state’s failure to comply with an order of a chamber could be reported to the ICTY President, who then must transmit this report to the UN Security Council pursuant to Rule 7 bis.
In preparation for the trial, and as early as December 2001, the Prosecution had issued requests for assistance to the FRY, in the form of requests for documents and access to identified archives (Prosecutor v. Milošević 13 December 2002, paras. 1–4). After over a year of alleged partial non-compliance with these requests by the FRY, and 10 months after the trial began, the Prosecution requested, in December 2002, the Trial Chamber to order the FRY to produce certain documents and grant the Prosecution access to 16 archives in the control of the FRY (Prosecutor v. Milošević 13 December 2002, paras. 1–5).Footnote 37 The Prosecution emphasised that the FRY’s failure to provide documents had “seriously obstructed the progress of this trial” because the use of the requested documents “may very substantially abbreviate the trial proceedings—as in the eight-month Nuremberg trial … [which] focused on documentary evidence” (Prosecutor v. Milošević 13 December 2002, para. 4, note 2). The Prosecution also argued that the unavailability of the requested documents prejudiced the rights of victims, as well as Milošević’s right to a fair trial (Prosecutor v. Milošević 13 December 2002, para. 7).
Serbia and Montenegro opposed the application in a written submission and informed the Chamber that it welcomed the opportunity to examine its cooperation with the ICTY, for example, Serbia and Montenegro’s indictment and arrest of Milošević in 2001, as well as his transfer to the ICTY in June 2001 (see Prosecutor v. Milošević 7 February 2003, paras. 2–3). Moreover, Serbia and Montenegro argued that it could not be considered in non-compliance with requests for assistance pursuant to Article 29 of the Statute because the production of documentation was “a process”, it had completed 58 % of the Prosecution requests, and the situation had to be viewed in the context of the “new democratic authorities inherit[ing] a tremendous task of reforming an administration shaped during 12 years of Milošević’s rule” (see Prosecutor v. Milošević 7 February 2003, para. 4). After arguing that many of the requests that the Prosecution characterised as unfulfilled had in fact been fulfilled, Serbia and Montenegro rejected the proposition that anything in the Statute or Rules provided a legal basis upon which a chamber could grant a party access to state archives (see Prosecutor v. Milošević 7 February 2003, paras. 5–6, 8–17). Serbia and Montenegro furthermore argued that Article 18(2) of the Statute and Rule 39 did not authorise such an order by a chamber (see Prosecutor v. Milošević 7 February 2003, para. 14; Statute of ICTY; IT/32/Rev.44 10 December 2009).Footnote 38 It was finally argued by Serbia and Montenegro that the Prosecution’s application failed to meet the requirements of Rule 54 bis (A) (Prosecutor v. Milošević 7 February 2003, paras. 18–32).Footnote 39
In a reply, the Prosecution sought to clarify that its request for access to governmental archives was not a demand for general access but rather a request “to survey archives in order to establish what documents, if any, may be pertinent to Tribunal proceedings” (see Prosecutor v. Milošević 27 February 2003, para. 3, note 8; 14 February 2003; 19 February 2003). Moreover, it argued that access to archives could be achieved not only under Rule 54 bis but also via a search warrant issued pursuant to Rules 39 and 54 and noted that such orders had been issued for official governmental buildings, including military facilities and archives in the former Yugoslavia (see Prosecutor v. Milošević 27 February 2003, paras. 8–16).Footnote 40
After hearing the Prosecution and Serbia and Montenegro in March 2003, the Trial Chamber issued an oral order giving Serbia and Montenegro 2 months to respond to a priority list of documents compiled by the Prosecution (Hearing 10 March 2003, T.17526–17580; see Prosecutor v. Milošević 6 May 2003b, para. 8). In the words of the Prosecution, “Serbia and Montenegro is acting as if it is an adverse party to litigation rather than a State party assisting the International Tribunal in its search for truth and reconciliation in the former Yugoslavia” (Prosecutor v. Milošević 20 May 2003, paras. 1, 3, 21–22, notes 30–31 (citing UNSC Res 827 1993; UNSC Res 955 1994); Jorda 2002; del Ponte 2002). Another hearing was held, which resulted in a series of orders being issued by the Chamber for Serbia and Montenegro to produce thousands of documents by a particular deadline or update the Chamber of the specific reasons why it could not do so (Prosecutor v. Milošević 3 June 2003, T. 21648–21693). Among these documents were the stenographic recordings of meetings of the FRY’s Supreme Defence Council (SDC), as well as documents relating to the Supreme Command and the Joint Command for Kosovo (Prosecutor v. Milošević 5 June 2003; 12 June 2003, Annex A, p. 1, Rulings 1–3).Footnote 41
What followed was a prolix, labyrinthine effort by the Prosecution and the Chamber to force Serbia and Montenegro to comply with the many orders that had been issued (Prosecutor v. Milošević 15 September 2003, pp. 2–3; 17 December 2003, p. 2). After at least 13 decisions over the course of a year and with the Prosecution case almost at an end, it would have been conceivable for the Trial Chamber to bring to an end these Rule 54 bis proceedings, but instead, the Chamber showed a willingness to continue the litigation well into its second year, by issuing additional orders for the production of documents and supplemental reporting by both the Prosecution and Serbia and Montenegro.Footnote 42
Self-representation, Part II
At the start of the trial, the Trial Chamber turned its attention to ensuring that Milošević had adequate assistance for his defence. It considered a brief of the Amici Curiae regarding whether Milošević had access to adequate facilities to conduct his defence (Prosecutor v. Milošević 5 March 2002). The Chamber also considered a Registry Report on the matter (Prosecutor v. Milošević 18 March 2002). During a hearing on 10 April 2002, Milošević identified two lawyers as associates with whom he wished to communicate.Footnote 43 Less than a week later, the Trial Chamber varied its order of 15 November 2001 and granted Milošević privileged communications with them (Prosecutor v. Milošević 16 April 2002b). In October 2003, the Trial Chamber, upon the written request of Milošević, appointed a third lawyer as a “Legal Associate”.Footnote 44 On 24 April 2002, the Trial Chamber found that, in accordance with Article 21 of the Statute, Milošević had adequate time and facilities for the preparation of his defence and that it was satisfied that “all possible efforts were being made to assist him” (Hearing 24 April 2002, T.3737–3740).
In October 2002, the Trial Chamber instructed the Registry to revoke the appointment of one of the Amici Curiae on grounds of apprehension of bias. That Amicus had granted interviews to several publications in which it appeared that he had “formed a view of the case unfavourable to the Accused”.Footnote 45 Approximately a month later, the Trial Chamber designated a new person as Amicus Curiae with respect to questions of international law.Footnote 46
The Trial Chamber’s first decision on assignment of counsel
Despite the assistance to Milošević from the three Amici Curiae and the three Legal Associates, from about 1 month into the start of the trial, Milošević began to show signs of ill health. This resulted in hearings being cancelled at the last minute and delays in the proceedings. In November 2002, the Trial Chamber expressed concern about the completion of the trial in the light of the state of Milošević’s ill health and the length and complexity of the case and ordered submissions from the parties on the matter.Footnote 47
A week later, the Prosecution filed a motion, proposing that the Trial Chamber appoint defence counsel for Milošević with the suggestion that the Amici Curiae be appointed to the role of defence counsel (Prosecutor v. Milošević 8 November 2002). Milošević rejected the suggestion in court a few days later (Hearing 11 November 2002, T.12837). The Amici Curiae filed their own submissions on the matter, indicating that “the interests of justice do not require the assignment of counsel, which would deprive Milošević of his right to conduct his own defence” (Prosecutor v. Milošević 18 November 2002, p. 6).
In December, the Trial Chamber orally rejected the Prosecution’s Motion, stating that “[d]efence counsel will not be imposed upon the Accused against his wishes in the present circumstances. It is not normally appropriate in adversarial proceedings such as these. The Trial Chamber will keep the position under review” (Hearing 18 December 2002, T.14574). In April 2003, the Trial Chamber issued its written reasons for this decision (Prosecutor v. Milošević 4 April 2003, paras. 18–41), holding that the plain reading of Article 21(4)(d) of the Statute provided for a right to defend oneself in person, this interpretation being supported by the essentially adversarial nature of the ICTY proceedings (Prosecutor v. Milošević 4 April 2003, paras. 18–20). The Chamber pointed out that the imposition of a defence counsel upon an accused who does not want one was a feature of inquisitorial systems, but not of adversarial systems (Prosecutor v. Milošević 4 April 2003, para. 21). Moreover, remarked the Chamber, in Romano-Germanic legal systems, where the court was fulfilling a more investigative role in an attempt to establish the truth, it may have been appropriate to appoint defence counsel for an accused who wishes to represent himself. However, the imposition of defence counsel on an unwilling accused in an adversarial system would effectively deprive that accused of putting forward a defence, because in adversarial systems it was the responsibility of the parties to put forward the case and for the court to judge (Prosecutor v. Milošević 4 April 2003, para. 24).
The Trial Chamber did observe that “the right to defend oneself in person is not absolute …, as there may be circumstances where it is in the interests of justice to appoint counsel” (Prosecutor v. Milošević 4 April 2003, para. 40). For example, an accused whose behaviour had resulted in his removal from the courtroom pursuant to Rule 80(B),Footnote 48 “has also relinquished his right to defend himself in person”. The Trial Chamber held that at that point in the trial no circumstance had arisen that supported the imposition of defence counsel but stated that it would “keep the position under review”. The Trial Chamber also held that, “while ensuring that the trial is fair and expeditious, a Trial Chamber must also ensure that the rights of the accused, as set out in Article 21 of the Statute, are not infringed” (Prosecutor v. Milošević 4 April 2003, paras. 40–41).
In order to lessen the physical burden on Milošević, the Chamber moved to a schedule of four consecutive rest days every other week until the end of September 2003 (Prosecutor v. Milošević 22 September 2004, para. 9). Following repeated delays in the trial and with seven hearing days having been lost in the month of September alone, on 23 September, the Prosecution filed a motion requesting a hearing to discuss the implications of Milošević’s recurring ill health (Prosecutor v. Milošević 23 September 2003). The Trial Chamber ordered both the Prosecution and the Amici Curiae to make written legal submissions in relation to the proposals made by the Prosecution in its motion and thereafter to make submissions at an oral hearing on 30 September (Prosecutor v. Milošević 24 September 2003). After considering the parties’ submissions, the Trial Chamber made an oral ruling to the effect that the Chamber would sit 3 days per week, giving Milošević 4 days of consecutive rest each week (Prosecutor v. Milošević 30 September 2003). Milošević was not present at the hearing due to illness.
End of the Prosecution case
On 2 September 2003, the Trial Chamber held a status conference to discuss the anticipated conclusion of the Prosecution’s case and the preparation for the presentation of the defence case (Hearing, Pre-Defence Conference, 02 September 2003, T. 25943-25945). Milošević was expected to continue to prepare his defence case during the interval between the end of the Prosecution case-in-chief and the commencement of the defence case. However, Milošević took the position that the amount of time he needed to prepare his defence case “even the barest minimum of the time … would have to be in excess of two years” (Hearing 2 September 2003, T.25944). Milošević also reminded the Chamber that “the opposite side itself disclosed about half a million pages” of material (Hearing 2 September 2003, T.25943–25945).
On 17 September 2003, the Trial Chamber ordered that the trial would be adjourned for 3 months between the close of the Prosecution’s case-in-chief and the commencement of the defence case to enable Milošević to prepare his case (Prosecutor v. Milošević 17 September 2003). In January 2004, the Appeals Chamber upheld the Trial Chamber’s decision (Prosecutor v. Milošević 20 January 2004).
On 25 February 2004, the Prosecution (via a written filing) rested its case-in-chief, subject to several matters pertaining to the admission of documents and its case in rebuttal (Prosecutor v. Milošević 25 February 2004a). The Trial Chamber, on the same day, issued a decision, confirming the close of the Prosecution’s case-in-chief and making several rulings on outstanding motions pertaining to the admission of documentation (Prosecutor v. Milošević 25 February 2004b).Footnote 49 The Trial Chamber allotted 360 h, or 90 sitting days, to Milošević for the presentation of his case-in-chief. This was the same amount of time as the Prosecution was given, despite Milošević’s persistent claims that he only was given half of the time that the Prosecution was given to present his evidence (Prosecutor v. Milošević 25 February 2004c).
Amici Curiae motion for judgement of acquittal
On 3 March 2004, the Amici Curiae filed a motion requesting that the Trial Chamber acquit Milošević on a number of charges in the indictments, pursuant to Rule 98 bis (Prosecutor v. Milošević 3 March 2004, paras. 29–32). This Rule, at the time, provided that “[a]n accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence” and that “[t]he Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.”
The Amici Curiae argued, on Milošević’s behalf, that the Prosecution failed to establish the existence of an “armed conflict” in Kosovo prior to the commencement of the NATO bombing campaign on 24 March 1999, thus requiring parts of the Kosovo Indictment dependent upon this legal precondition to be dismissed (Prosecutor v. Milošević 3 March 2004, paras. 29–32; see 3 May 2004, paras. 17–75). They also argued that the Prosecution had failed to establish that Croatia was a state before some time between 15 January and 22 May 1992; thus, the conflict in Croatia was not of an international character before that time and all grave breaches counts in the Croatia Indictment that went to alleged crimes committed before these dates should be dismissed (Prosecutor v. Milošević 3 March 2004, para. 95; see 3 May 2004, paras. 122–153). Next, it was argued that the Prosecution had not adduced any or sufficient evidence that Milošević planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a genocide or that he was complicit in such acts. Along these lines, the Amici Curiae submitted that the mens rea requirement for establishing the crime of genocide was incompatible with the mens rea requirement for the third category of a joint criminal enterprise and command responsibility, as alleged in the Bosnia Indictment (Prosecutor v. Milošević 3 March 2004, paras. 161–162; see 3 May 2004, paras. 225–439). Finally, it was submitted that the Prosecution had not adduced any or sufficient evidence in relation to 185 separate allegations contained in the three indictments (Prosecutor v. Milošević 3 March 2004, sections III.E, IV.D, V.C.).Footnote 50
At this point, the Presiding Judge, Richard May, who had steered the trial through the pre-trial phase and through most of the Prosecution’s case-in-chief, resigned effectively on 1 June 2004, due to ill health, and Judge Patrick Robinson took over as the Presiding Judge of the trial. Judge Iain Bonomy was appointed in order to make up the quorum of three judges (Prosecutor v. Milošević 10 June 2004). Judge May, now knighted by the Queen of England, passed away a short time later (Simons 2004).
In June, the Trial Chamber issued its decision, holding that the Prosecution had adduced sufficient evidence for a Trial Chamber to find that there existed an armed conflict in Kosovo in the FRY prior to 24 March 1999 (Prosecutor v. Milošević 16 June 2004, para. 318). The Trial Chamber also found that there was sufficient evidence that Croatia had become a state by 8 October 1991 for the purposes of Rule 98 bis and that the conflict in Croatia was thus international during the time of the grave breaches counts in the Croatia Indictment (Prosecutor v. Milošević 16 June 2004, para. 115). The motion of the Amici Curiae was thus dismissed in these respects.
With respect to the Amici Curiae submissions concerning genocide, the Trial Chamber dismissed the motion—except for the allegations of genocide in Kotor Varoš—and held that there was sufficient evidence that “there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Ključ and Bosanski Novi” (Prosecutor v. Milošević 16 June 2004, para 232(1)). The Trial Chamber also found that there was sufficient evidence to hold that Milošević was a participant in that joint criminal enterprise, the aim of which was also to commit crimes other than genocide and that it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by participants in the joint criminal enterprise (Prosecutor v. Milošević 16 June 2004, para. 323(2)–(3)). Finally, the Chamber found that there was sufficient evidence to hold that Milošević aided and abetted genocide or was responsible for genocide through the doctrine of superior responsibility (Prosecutor v. Milošević 16 June 2004, para. 323(4)–(5)).
Presiding Judge Robinson appended a separate opinion, discussing the legal standard to be applied to a motion for acquittal (Prosecutor v. Milošević 16 June 2004, section VI, paras. 1–18). Judge Kwon appended a dissenting opinion, with respect to the Trial Chamber’s holding that the Prosecution had adduced sufficient evidence for a Trial Chamber to find that Milošević was responsible for genocide under Article 4 of the Statute under the theory of the third category of joint criminal enterprise (Prosecutor v. Milošević 16 June 2004, section VII, paras. 1–4).
Although the decision dismissed certain allegations relating to some of the counts in the indictments, the effect of the Trial Chamber’s determinations was that there was sufficient evidence to support each count challenged in the three indictments (Prosecutor v. Milošević 16 June 2004, section VII, paras. 1–4). The trial would therefore proceed to the defence phase of the proceedings (Prosecutor v. Milošević 16 June 2004, para. 316). It is interesting to note that this would turn out to be the only decision of the Trial Chamber evaluating the evidence in the trial, although the standard of proof for this motion was only whether there was sufficient evidence upon which a trial chamber could convict, rather than whether there was evidence beyond reasonable doubt regarding Milošević’s responsibility.
Amending the indictments
In April 2004, the Trial Chamber granted the Prosecution leave to amend the Bosnia Indictment and confirmed that the operative Bosnia Indictment was the amended Bosnia Indictment, as amended on 22 November 2002 (Prosecutor v. Milošević 21 April 2004).Footnote 51
On 20 July 2004, the Trial Chamber granted the Prosecution leave further to amend the amended Croatia Indictment (Prosecutor v. Milošević 20 July 2004; see also 11 March 2004). One week later, the Trial Chamber modified this order and granted the Prosecution further leave to amend the amended Croatia Indictment. The Chamber also confirmed that the second amended Croatia Indictment was the operative indictment for the Croatia phase of the proceedings.Footnote 52
In July, the Trial Chamber invited written submissions with a view of giving further consideration to ways in which the trial might be concluded in a fair and expeditious manner. Specifically, the Trial Chamber wanted to explore the possibility of severing one or more of the indictments and then finishing one of the trials first, before then proceeding to complete the other two trials (Prosecutor v. Milošević 21 July 2004). The Prosecution, the Amici Curiae, and Milošević all filed submissions on this matter. They all expressed their opposition to severing the indictments (Prosecutor v. Milošević 27 July 2004a; 27 July 2004b; Addendum 6 August 2004). It was probably the only moment in the trial when the parties agreed on something. The Trial Chamber decided not to give further consideration to the matter at that time (Prosecutor v. Milošević 25 August 2004).
Self-representation, part III: taking the case away from Milošević
On 27 June 2003, the Trial Chamber ordered that one of the Amici Curiae’s appointments be concluded at the end of the Prosecution case. The Chamber also decided that the other two Amici Curiae (or simply one of them) were to be present for the first 4 weeks of the defence case (Prosecutor v. Milošević 27 June 2003, paras. 3–4(a)). After this, the Trial Chamber would determine their future role, if any, in the trial (Prosecutor v. Milošević 27 June 2003, para. 4(b)).
During the period leading up to the commencement of the defence phase of the proceedings, a “Pro Se Legal Liaison Officer” was created in order to facilitate the interaction between Milošević and his Legal Associates with various sections of the ICTY, as well as the Prosecution and Chamber. This person had responsibilities spanning from the management of documentary evidence on behalf of the Defence to coordinating the appearances of witnesses to be called by Milošević to give evidence before the Chamber (see, e.g. Prosecutor v. Milošević 8 July 2005, p. 2).Footnote 53
Milošević continued to experience ill health during February 2004 at the end of the Prosecution case and throughout the time allocated for the preparation of his defence. By that stage, the trial had been interrupted during the course of the Prosecution’s case over a dozen times on account of the ill health of Milošević, causing the loss of some 66 trial days. The defence case, scheduled to start on 8 June, was postponed on five occasions, again on account of the ill health of Milošević.
The Trial Chamber heard oral submissions from the parties on 5 July 2004 on this matter. At that hearing, there was discussion of recent health reports. The Amici Curiae raised two issues: Milošević’s fitness to present his defence at this time and his fitness to stand trial at all (Hearing 5 July 2004, T.32143). While holding that there was no evidence before the Trial Chamber that Milošević was not fit to stand trial, the Trial Chamber considered that there was evidence indicating that the health of Milošević was such that he might not be fit to continue to represent himself and that the continuation of his self-representation could adversely affect the fair and expeditious conduct of the trial. Such was the concern of the Trial Chamber that it decided to “carry out a radical review of the trial process and the continuation of the trial in the light of the health problems of the Accused, which are clearly chronic and recurrent based on the most recent report from the doctor” (Hearing 5 July 2004, T.32153–32154).
The Trial Chamber subsequently directed the Registrar to identify a cardiologist with no prior involvement in the treatment of Milošević. He would be instructed to examine Milošević and consider all relevant information pertaining to his fitness to continue to represent himself and the likely impact on the trial schedule, should he continue to do so (Prosecutor v. Milošević 6 July 2004).Footnote 54 In mid-July, the Trial Chamber issued an identical request to the doctor who had been treating Milošević for cardiological problems for some time (Prosecutor v. Milošević 15 July 2004).
Later that summer, the Trial Chamber sought submissions about the role that counsel could take in ensuring the fair presentation of the defence case, in particular in the absence of Milošević’s cooperation with counsel or his refusal to give them instructions (Prosecutor v. Milošević 6 August 2004). In August, written submissions on the issue of assigning counsel to Milošević were submitted by the Prosecution and the Amici Curiae (Prosecutor v. Milošević 26 July 2004b; 19 August 2004; 13 August 2004; Addendum 6 August 2004). Milošević made no written submissions. In September, the Prosecution, the Amici Curiae, and Milošević each addressed the Trial Chamber in relation to the future conduct of the case. The issue to be decided was whether Milošević should be assigned counsel—against his wishes—in order to ensure his right to a fair trial.
Having heard all the submissions and having considered all the related filings submitted during the summer of 2004 (Prosecutor v. Milošević 26 July 2004b; 27 July 2004a; 19 August 2004; 27 July 2004b; 13 August 2004; Addendum 6 August 2004), the Trial Chamber gave the following oral ruling on 2 September:
In its reasons for its decision on the Prosecution motion concerning assignment of Defence counsel of 4 April 2003, the Trial Chamber, while holding that the accused had a right to defend himself, also held in paragraph 40 that the right to defend oneself in person is not absolute and that it would keep the position under review …. The health of the accused has been a major problem in the progress of the trial. In the Prosecution’s case, the trial was interrupted over a dozen times on account of the ill health of the accused, thereby losing some 66 trial days.
The Defence case that was scheduled to start on 8 June was postponed on five occasions, again on account of the ill health of the accused. The Trial Chamber requested Dr. van Dijkman, who has been treating the accused for cardiological problems for some time, and Professor Tavernier from Belgium, who was identified by the registrar as a cardiologist with no prior involvement in the treatment of the accused, to examine the accused and consider all relevant information pertaining to his health in the context that he represents himself, and report to the Trial Chamber on the fitness of the accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so. Both doctors reported that the accused suffers from severe essential hypertension and that his condition was such that a hypertensive emergency, a potentially life-threatening condition, could develop. They also found that one explanation for his medical condition was his failure to adhere to the proposed therapeutic plan.
Blood tests carried out on the accused confirmed this conclusion. It is plain from the medical reports that the accused is not fit enough to defend himself and that, should he continue to represent himself, there will be further delays in the progress of the trial.
The issue before the Chamber is whether the right of an accused set out in Article 21 of the Statute to defend himself in person is subject to qualification, and if it is, whether in the circumstances of this case that right should be qualified by assigning counsel to represent the accused.
The Chamber is satisfied, on the basis of the Tribunal’s Statute and the jurisprudence, as well as the law of many domestic jurisdictions, that the right of an accused person to represent himself is not unfettered, and in the circumstances of this case, it is both competent to assign counsel to the accused and in the interests of justice to do so. We shall, therefore, do so.
The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber is that, based on the medical reports, there is a real danger that this trial might either last for an unreasonably long time or, worse yet, might not be concluded, should the accused continue to represent himself without the assistance of counsel. On the other hand, the Chamber is satisfied that, if counsel is assigned to the accused, measures can be devised to ensure that the trial continues in a manner that is both fair and expeditious.
Having decided to assign counsel to the accused, it will be the duty of the Chamber to ensure that the role of assigned counsel is so fashioned that the trial process, while being expeditious, will protect the fundamental right of the accused to a fair trial (Hearing 02 September 2004, T.32357–32359; see Prosecutor v. Milošević 22 September 2004).
Following this oral ruling and in furtherance of its duty to ensure that the role of Assigned Counsel was so fashioned that the trial process would protect the fundamental right of Milošević to a fair trial, the Chamber issued an order in which it set out, with specificity, the functions that the Assigned Counsel would undertake and the role that Milošević would play in his defence. Assigned Counsel had the duty to determine how to present the defence case for Milošević, including choosing, preparing, and examining witnesses; making submissions on fact and law; seeking orders from the Trial Chamber that they considered necessary to enable them to present the defence case properly; discussing with Milošević the conduct of the case and endeavouring to obtain his instructions; taking into account of Milošević’s views, while retaining the right to determine what course to follow; and acting in Milošević’s best interests. The Trial Chamber authorised Milošević, with the leave of the Trial Chamber, to continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses after Assigned Counsel had done so. The Chamber, in its order, reminded Milošević that he still retained the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel (Prosecutor v. Milošević 3 September 2004, pp. 2–3).
The Trial Chamber stated that it was satisfied that Assigned Counsel would make determined efforts to discuss the presentation of Milošević’s defence with him. Should Milošević fail to cooperate with counsel, the trial would nonetheless proceed. The Trial Chamber further held that, if such failure on the part of Milošević resulted in material relevant to Milošević’s case not being presented, then Milošević had to bear responsibility and could not plead injustice (Prosecutor v. Milošević 22 September 2004, para. 70).
The defence case
Parameters of the defence case
On 25 February 2004, the Trial Chamber ordered that Milošević would have the same time as the Prosecution to present his case-in-chief. The Prosecution had spent approximately 360 h presenting its case-in-chief or approximately 90 sitting days (Prosecutor v. Milošević 25 February 2004, para. 1). The Trial Chamber then added two thirds of that time for cross-examination of witnesses called by the defence and administrative matters, which amounted to approximately 240 h or 60 sitting days (Prosecutor v. Milošević 25 February 2004, para. 2). Milošević would therefore have 150 sitting days in which to present his case, a period that was subject to adjustment depending upon the time taken in cross-examination and administrative matters (Prosecutor v. Milošević 25 February 2004, para. 4).
At the pre-defence conference of 17 June 2004, a number of orders were made concerning the management of the defence case. Milošević was limited to 150 sitting days to present his case, regardless of the number of witnesses he had on his list. The Trial Chamber noted that it did not seek to limit the number of witnesses Milošević could call but rather encouraged him to make use of the procedures available under Rules 92 bis and 89(F). Milošević was ordered to produce a weekly list of witnesses. He was ordered to disclose to the Prosecution copies of all exhibits on his Rule 65 ter list within 7 days. Milošević was required to make written filings when ordered by the Trial Chamber to do so. He was allowed to make an opening statement of not more than 4 h, to which the Prosecution was not allowed to respond. Milošević was ordered to make a separate written application for each witness whom he would seek to subpoena. Finally, Milošević was ordered to make a written application for the production of documents or other information from states and to comply with all procedural requirements; oral applications would not be considered (Prosecutor v. Milošević 17 June 2004, paras. 1, 3, 9–10, 12, 18–19). In complying with all of these tasks, Milošević had the assistance of Assigned Counsel, his Legal Associates, and the Pro Se Legal Liaison Officer.
During the pre-defence conference, Milošević informed the Chamber that he anticipated a witness list that would include 1631 persons (Prosecutor v. Milošević 17 June 2004, T.32125) and that between 1300 and 1400 witnesses had agreed for their names to be disclosed to the Trial Chamber (Prosecutor v. Milošević 17 June 2004, T.32084). Milošević was scheduled to commence the presentation of his defence on 5 July 2004 but was unable to do so due to medical concerns (Hearing 5 July 2004, T.32135). His opening statement was not presented until 31 August and 1 September 2004 (Hearing 31 August and 1 September 2004, T.32157–32298). After the opening statement, the Trial Chamber adjourned for 4 weeks to enable further preparation for the defence case. The trial resumed on 12 October 2004.
In a May 2005 order, the Trial Chamber made some modifications to the use of time in the defence case (Prosecutor v. Milošević 19 May 2005). The time allocated to the Prosecution for cross-examination was revised to 216 h or 54 sitting days, being 60 % of the time allotted to Milošević. It was furthermore ordered that a separate record of time spent on administrative matters be kept but that it should not be counted against the time allotted to Milošević (Prosecutor v. Milošević 19 May 2005, para. 3). The Trial Chamber clarified that “administrative matters are those which do not fall into the category of procedural issues” arising from examination of witnesses, “including discussion of the admissibility of exhibits and other matters as determined by the Trial Chamber” (Prosecutor v. Milošević 19 May 2005, para. 3).
Self-representation, part IV: giving the case back to Milošević
Assigned Counsel encountered problems almost immediately and complained about the lack of cooperation from witnesses and from Milošević himself. For example, Assigned Counsel only managed to call 5 out of a list of 140 witnesses, many of whom refused to give evidence in protest against the Trial Chamber’s decision to appoint counsel to Milošević against his wishes. In October 2004, Assigned Counsel wrote a letter to the Registrar seeking to be withdrawn from their position as Counsel (Prosecutor v. Milošević 27 October 2004a). The Registrar deemed that it was more appropriate for the Trial Chamber to decide the matter (Prosecutor v. Milošević 27 October 2004b). The Trial Chamber rendered its decision in December, holding that Assigned Counsel were neither entitled to withdraw nor to terminate their assignment unilaterally (Prosecutor v. Milošević 7 December 2004, para. 26). In accordance with this decision, the Registrar denied the Assigned Counsel’s request (Prosecutor v. Milošević 14 December 2004).
The Assigned Counsel then turned to the President of the ICTY and asked him to review the Registrar’s decision to refuse their application to withdraw. In a decision of February 2005, the President held that the refusal of an accused to cooperate with his lawyers did not mean that the Registrar was required to withdraw the assignment of counsel under Article 19(A) of the ICTY Code of Conduct (Prosecutor v. Milošević 7 February 2005a, para. 10 citing paras. 53, 54 of Prosecutor v. Blagojević). In fact, any other holding in the present case would in effect give Milošević the power to render the decision that counsel should be assigned meaningless by simply refusing to cooperate with the Assigned Counsel (Prosecutor v. Milošević 7 February 2005a, para. 10).
In November 2004, the Appeals Chamber affirmed the Trial Chamber’s decision to impose Counsel upon Milošević, but reversed the Trial Chamber’s order on the modalities by which that representation would function. The Appeals Chamber held that the Trial Chamber should craft a working regime that minimised the practical impact of the formal assignment of counsel. Such a regime had to be rooted in the default presumption that Milošević should take the lead in presenting his case whenever he was able to do so, such as choosing which witnesses to present, questioning the witness before Assigned Counsel is given the opportunity to do so, arguing any proper motion he wished, giving a closing statement, and making the basic strategic decisions about the presentation of his case. The Appeals Chamber stressed that Assigned Counsel should only step in where Milošević’s health prevented him from presenting his own defence (Prosecutor v. Milošević 22 September 2004, paras. 19–20).
The Assigned Counsel were thus effectively returned, by the Appeals Chamber, to the previous role they had occupied while they were Amici Curiae, which was, in essence, stand-by counsel. Milošević was back in control of his case.
Admission of documents: setting the ground rules
A February 2005 order set forth the Trial Chamber’s general approach to the admission of defence evidence during Milošević’s case-in-chief (Prosecutor v. Milošević 7 February 2005b). In this order, the Trial Chamber sought to lay out general ground rules for the copious amounts of evidence that Milošević said he would tender during his case, much of which had not yet been translated into a working language of the Tribunal (Prosecutor v. Milošević 7 February 2005b).
During the defence case, the Prosecution attempted to adduce evidence to prove its case against Milošević during its cross-examination of Milošević’s own witnesses. The matter was litigated (Prosecutor v. Milošević 15 March 2005) and resulted in a ruling by the Trial Chamber that, although the Prosecution could put material to a witness during cross-examination in accordance with Rule 90(H) (Prosecutor v. Milošević 17 May 2005),Footnote 55 it was not allowed to have the material admitted when a defence witness could offer no meaningful evidence in relation to the tendered material (Prosecutor v. Milošević 17 May 2005, para. 9). This ruling precluded the Prosecution from admitting a large body of material through Milošević’s witnesses during the defence case.
Application to subpoena Tony Blair and Gerhard Schröder
In August 2005, Assigned Counsel filed applications requesting that a binding order be issued to the government of the United Kingdom and the Federal Republic of Germany. Assigned Counsel wanted the UK and Germany to arrange for pre-testimony interviews and the appearance in court of UK Prime Minister Tony Blair and former German Chancellor Gerhard Schröder.
In its decision, the Trial Chamber first clarified that the subpoena of a state official was appropriately brought under Rule 54, rather than the provisions of Rule 54 bis, which were devoted to the compulsion of documentary evidence from a state. The Trial Chamber then articulated the legal standard for the issuance of a subpoena ad testificandum as such: the moving party must show that a subpoena is “necessary … for the preparation or conduct of the trial”, and this includes a two-pronged test: a reasonable basis must be shown that the prospective witness is likely to give information that will materially assist the applicant with respect to specific issues in the trial (“legitimate forensic purpose” requirement), and this information cannot be obtainable through other means (“last resort” requirement). The Trial Chamber further clarified that “an applicant for a subpoena must be specific about the information sought from the prospective witness and must demonstrate a nexus between this information and the case against the accused”. The Trial Chamber, after having examined in detail the issues in relation to which the Assigned Counsel wished to subpoena Blair and Schröder, decided that there was no legitimate forensic purpose for the their testimony nor was it necessary in order to ensure that the trial was fair and informed (Prosecutor v. Milošević 9 December 2005).
Having found that the application failed on its merits, the Trial Chamber did not need to decide whether the status of the prospective witnesses as senior state officials gave them immunity from being compelled to attend an interview or testify before the Tribunal (Prosecutor v. Milošević 9 December 2005, para. 67).
Resurfacing of the Rule 54 bis litigation
Many of the documents adduced by the Defence during the direct examination of witnesses led the Prosecution to request the Chamber to take further action in relation to prior Rule 54 bis applications. In August 2005, almost a year after the start of the defence case, the Prosecution argued in a renewed Rule 54 bis motion that the testimony of Božidar Delić revealed that the Defence had been provided with extensive access to VJ documents, documents that had been the subject of prior litigation between the Prosecution and Serbia and Montenegro (see Prosecutor v. Milošević 24 August 2005, para. 2).
The Chamber ordered Serbia and Montenegro to file publicly an explanation for “why it did not previously produce, and to this date still has not produced, the two ‘Joint Command’ documents tendered by witness Božidar Delić during his testimony, despite the fact that [a previous decision had] called for the production of such documents” (Prosecutor v. Milošević 31 October 2005, para. 4(a)). The Chamber noted that Serbia and Montenegro was “still bound by [a previous decision] that Serbia and Montenegro ‘continue its efforts to locate the requested documentation’ and produce such documentation to the Prosecution, and that a state must always perform its legal obligations in good faith” (Prosecutor v. Milošević 31 October 2005).Footnote 56
Milošević’s motion for an extension of time
In December 2005, the Trial Chamber denied Milošević’s motion for an extension of time in which to present his defence case (Prosecutor v. Milošević 13 December 2005a). In so doing, the Chamber held that, as of 30 November 2005, Milošević had used 75.35 % of the time allotted to him. Despite repeated warnings by the Chamber to use his time to address evidence in relation to all three indictments against him, Milošević had led almost entirely Kosovo-related evidence (Prosecutor v. Milošević 12 December 2005, para. 16). Moreover, despite having been urged by the Chamber on several occasions to make use of the procedural mechanisms of Rules 89(F) and 92 bis for the admission of written evidence in lieu of oral testimony, he insisted on leading all evidence viva voce in court (Prosecutor v. Milošević 12 December 2005, para. 16).
Prosecution’s attempt to re-open its case-in-chief
Earlier on, in July 2005, about a year and a half after closing its case-in-chief against Milošević, the Prosecution had sought the re-opening of its case in order to present six new witnesses and 50 new documents (Prosecutor v. Milošević 18 July 2005). This evidence substantively fell into five categories related, according to the Prosecution, to key issues in its case as follows: a plan to ethnically cleanse Bosnia of its Muslim population dating from at least 1992; the involvement of the VJ in the war in Bosnia between 1992 and 1995; the involvement of Serbia’s Ministry of Interior in the Bosnian war between 1992 and 1995, including in the Srebrenica massacre; VJ personnel files of high-ranking military officials involved in the wars in Bosnia; and VJ involvement in the Račak massacre in Kosovo in 1999 (Prosecutor v. Milošević 13 December 2005b, para. 16).
After articulating the legal standard for re-opening, the Trial Chamber conducted a detailed analysis of each of the items of evidence that the Prosecution desired to tender as evidence (Prosecutor v. Milošević 13 December 2005b, paras. 7–15). This analysis included an examination of whether the items had been newly obtained (Prosecutor v. Milošević 13 December 2005b, paras. 20–23) and whether the Prosecution has exercised reasonable diligence in relation to the evidentiary items (Prosecutor v. Milošević 13 December 2005b, paras. 24–32). After having found that some of the items met this test, the Chamber then went on to assess whether it should exercise its discretion to allow the re-opening of the Prosecution’s case for these items, which entailed weighing the probative value of the evidence against the need to ensure a fair trial.
The Chamber considered that the exceptional measure of re-opening the Prosecution’s case-in-chief—which was certain to cause delay and which was at a late stage of a trial (begun three and a half years before the motion was made)—was warranted only where the probative value of the proposed evidence was particularly high. Based upon the extensive evidence already adduced during the Prosecution’s case-in-chief, the Trial Chamber was of the view that none of the items for which reasonable diligence was established had sufficient probative value to warrant admission as the basis of a re-opened case-in-chief. Although most of the items had some probative value in relation to the underlying offences charged in the indictments, none was of significance for the ultimate legal question of whether Milošević was responsible for the alleged crimes. The Prosecution’s request to re-open its case was therefore denied (Prosecutor v. Milošević 13 December 2005b, paras. 37–38).
Judge Kwon issued a separate opinion agreeing with the majority in the outcome of the decision but disagreeing with the majority in the approach to materials in the possession of the Prosecution before the close of its case-in-chief and with its reluctance to adopt a “miscarriage of justice standard” to such material. Judge Kwon also disagreed with the majority’s application of the reasonable diligence standard to certain material (Prosecutor v. Milošević 13 December 2005b: Separate Opinion of Judge O-Gon Kwon, para. 1).