The anatomy of the Milošević trial (2001–2006)

From death to birth

The SFRY did not survive the passage to the 21st century. Its fairly rapid disintegration began in the 1990s. After the adoption of the new Constitution of Serbia in 1990, Milošević was elected to the newly established Office of the President of Serbia in multi-party elections. One after another, Slovenia, Croatia, and Bosnia and Herzegovina declared their independence from the SFRY. In 1991, the wars in Slovenia (albeit brief) and Croatia began, along with the siege of Vukovar. In 1992, Bosnia followed its neighbours on the road to independence through a referendum and then war, with Sarajevo falling under siege and the setting up of detention camps in April. Relayed through the mass media, these events’ dramatic images led to public outcry. Action was demanded (Silber and Little 1996, pp. 37–41; Stephen 2004, pp. 82–85; Human Rights Watch 2006, p. 7).²

Later that year, the United Nations Security Council determined under Chapter 7 of the UN Charter that the situation in the former Yugoslavia constituted a threat to international peace and security and passed Resolution 771, declaring that individuals who committed or ordered the commission of grave breaches of the Geneva Conventions were individually responsible for such breaches and calling on the international community to cooperate in the collection of evidence of those crimes. The Security Council then asked the UN Secretary-General to assemble and task a group of experts to examine this evidence. When the Secretary-General reported back to the Security Council, the Council decided to request him to make a proposal for the establishment of an international criminal tribunal. On 25 May 1993, after having received this proposal, the Security Council acted under Chapter 7 of the UN Charter to pass Resolution 827. Thus was born the ICTY (see generally UNSC Res 827 1993).³

As the ICTY was taking its first steps, the armed conflicts in the SFRY continued. In July 1995, the UN Safe Haven at Srebrenica was taken by Bosnian Serb forces, and thousands of Bosnian Muslims were executed. The following month, NATO began to bomb Serb positions, and Croatian forces drove the Serb population from the Krajina. In November, the Dayton Peace Accords were signed by the warring factions, ending the active hostilities in the conflicts (Silber and Little 1996, pp. 265–387; Judah 2002, pp. 109–126; Stephen 2004, pp. 52–76; Human Rights Watch 2006, pp. 7–9).

From bombardment to indictment

During the conflicts in Croatia and Bosnia, the strategy of the Kosovo Albanian leadership in the Serbian province of Kosovo was one of non-violent civil disobedience. On the other hand, through the police forces of the Serbian Ministry of the Interior (MUP), Belgrade gradually increased its political grip on Kosovo (Judah 2002, pp. 61–98; Human Rights Watch 2006, pp. 9–10). The Democratic League of Kosovo (LDK) was the dominant political party of the Kosovo Albanians and was headed by Ibrahim Rugova, the “President” of the “Republic of Kosova”, which had been created on 19 October 1991 when the “parliament” confirmed a 22 September 1991 “Resolution on the Independence and Sovereignty of Kosovo” and subsequent referendum. A parallel government in Kosovo therefore existed alongside the one under the control of Belgrade (Judah 2002, pp. 61–98,109–134).

In July 1997, after having served two terms as President of Serbia, Slobodan Milošević was elected President of the Federal Republic of Yugoslavia (FRY) (ICTY case Information Sheet; Stephen 2004, p. 138). The Kosovo Liberation Army (KLA) became increasingly organised. In 1998, the Serbian forces began a major crackdown on the KLA which, considering the balance of powers, decided to wage a guerrilla war. As the Serbian authorities claimed it was simply rooting out Albanian terrorists, the civilian casualties mounted. When these events were related to the West by the media and also by international observers on the ground in Kosovo, public sentiment was engaged. The concern was to prevent another Bosnia (Judah 2002, pp. 135–163).

Talks between NATO, the Organisation for Security and Co-operation in Europe, Serbs, and the Kosovo Albanians were held on and off throughout 1998 and 1999 but led to few results on the ground. The threat of force was used by NATO to little avail. In January 1999, 45 Kosovo Albanians and 9 KLA members were killed in the village of Račak. The circumstances of this incident remain shrouded in mystery to this day. Some called it a legitimate police action to eliminate from the village terrorists who were responsible for an attack on the police a few days earlier. Others characterised it as a massacre. Nevertheless, the NATO countries used Račak and the fact that the Albanian delegation, unlike the Serbs, signed the Rambouillet Agreement, as a major impetus for the use of air strikes against the FRY, which began on March 1999 and continued for 78 days into June (Judah 2002, pp. 193–285; Stephen 2004, pp. 140–145; see also UNSC Res 1244 1999).

On 22 May 1999, during the bombing of Serb positions in Kosovo and various targets in Belgrade itself, ICTY Prosecutor Louise Arbour submitted an indictment against Slobodan Milošević—as well as Milan Milutinović, the President of Serbia; Nikola Šainović, the FRY Deputy Prime Minster; Dragoljub Ojdanić, Chief of the General Staff of the Yugoslav Army (VJ); and Vlajko Stojiljković, the Minister of Internal Affairs of Serbia—for alleged crimes committed in Kosovo (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 23 May 1999).⁴ On 24 May 1999, Judge David Hunt confirmed the indictment (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 24 May 1999).⁵ On the same day, a warrant for the arrest of Milošević was issued (Prosecutor v. Milošević 24 May 1999). On 26 May 1999, the ICTY Prosecutor “made her announcement to the world” that Milošević, a serving head of state, was indicted for war crimes and crimes against humanity (Stephen 2004, p. 144).

From elections to detention

Shortly after Dayton, student protests resumed in 1996 and 1997 (Stephen 2004, p. 156; Judah 2002, p. 306). By the time of the cease fire between NATO and the FRY in June 1999 and the run-up to the federal elections, several political parties were challenging Milošević: the liberal opposition headed by Belgrade’s mayor, Zoran Đinđić; the liberal nationalist Serbian Renewal Party, headed by Vuk Drašković; and Vojislav Šešelj of the Radical Party. It has been said that Milošević, amidst continued protests, moved the elections from July 2000 to September 2000 to take advantage of the disorganisation of the opposition (Stephen 2004, pp. 157–158; Judah 2002, p. 306).

Vojislav Koštunica, a law professor considered to be a “compromise candidate”, won the election, but Milošević disputed the results. The election commission announced new figures, thus necessitating a second round of voting. Koštunica refused to accept this, and a new flurry of protests ensued (Stephen 2004, p. 159). On 5 October 2000, protestors took the federal parliamentary building, and Milošević finally stepped down from office 2 days later. Koštunica, however, refused to transfer Milošević to the ICTY, citing various legal objections, and announced that Milošević would stay in the presidential palace and be tried in the FRY on corruption charges. In April 2001, Milošević was arrested, removed from the presidential palace, and incarcerated in Belgrade District Prison (Stephen 2004, pp. 160–162; Human Rights Watch 2006, p. 10). It is at this point that the US decided to make monetary aid to the FRY contingent upon Milošević being transferred to The Hague (Stephen 2004, p. 164; Judah 2002, p. 305).

Shortly after Milošević was transferred to The Hague and while he was awaiting the commencement of his trial, he passed his 60th birthday in the UNDU. His wife, daughter-in-law, and grandson were granted 3-day visas for the occasion (BBC 2001a, BBC 2001b).

Challenging the chamber: appointment of the Amici Curiae and of Legal Associates

On 31 August 2001, the Trial Chamber issued an order inviting the Registrar of the Tribunal to designate Amicus Curiae. In doing so, the Trial Chamber recognised that, pursuant to Rule 74,⁹ the appointment of experienced lawyers to assist Milošević was in the interests of securing a fair trial (Prosecutor v. Milošević 30 August 2001b). The Trial Chamber stated that the purpose of the Amicus Curiae was not to represent an accused who had chosen to defend himself pursuant to Article 21(4)(d) of the Statute but to assist the Trial Chamber in the “proper determination of the case” (Prosecutor v. Milošević 30 August 2001b). Such assistance could take the form of making any submissions properly open to Milošević by way of preliminary or other pre-trial motions, making any submissions or objections to evidence properly open to him during the trial proceedings, cross-examining witnesses as appropriate, drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence, and acting in any other way considered appropriate in order to secure a fair trial (Prosecutor v. Milošević 30 August 2001b, p. 2).

On 6 September 2001, the Registrar appointed three lawyers to act as Amici Curiae.¹⁰ One of their main functions was to prepare out-of-court written submissions, whereas two of them would be more involved with the day-to-day proceedings of the trial, both in and out of court.¹¹ The Registrar was directed to provide to the Amici Curiae all information, including confidential, that was provided to Milošević (Prosecutor v. Milošević 19 September 2001).

The role of the Amici Curiae in the Milošević case was innovative in that they functioned, in practical terms, as stand-by counsel to a pro se accused. They were seated in court on a daily basis, although not directly at the bench where defence counsel would normally sit. Due to the fact that Milošević refused to make written filings, including responding to Prosecution motions for the admission of evidence, the Amici Curiae regularly made written filings opposing these Prosecution motions, much like a defence counsel would. They adopted a role of identity of interest with Milošević and did not assume the role of disinterested third parties appointed to assist the Chamber only—although the positions they adopted in their oral and written submission were aimed at ensuring the fairness of the proceedings, from their own professional point of view.

On 15 November 2001, the Trial Chamber issued an order on Milošević’s request for the Registry to permit him to meet with two lawyers to assist him. The Chamber ordered that the two men would be considered to be “legal advisors” to Milošević.¹² The Trial Chamber also ordered that Milošević would be entitled to communicate fully and without restraint with them in accordance with Rule 65 of the ICTY Rules of Detention (Prosecutor v. Milošević 15 November 2001).¹³ In other words, Milošević would enjoy attorney-client privilege with his two Legal Associates.

The role of the Legal Associates throughout the proceedings was a significant one, even though they were never seen within the courtroom and even though, in general, they did not make written filings on behalf of Milošević during the proceedings.

Challenging the ICTY: jurisdiction and legality

In August 2001, Milošević filed two motions challenging the jurisdiction and legality of the ICTY (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 9 August 2001; 30 August 2001), which were supplemented by the Amici Curiae (Prosecutor v. Milošević 16 August 2001; 19 October 2001; 13 September 2001). On 8 November 2001, the Trial Chamber issued its written decision (Prosecutor v. Milošević 8 November 2001).¹⁴ In rejecting the motions, the Trial Chamber considered several issues.

Second, Milošević argued that the creation of an ad hoc tribunal with a focus on violations of international law in one country targeted that country, corrupted justice and law, and violated the most basic legal principles. Nevertheless, the Trial Chamber noted that the Appeals Chamber had held that ad hoc tribunals, and the ICTY in particular, were permissible so long as they afforded Milošević all the guarantees of a fair trial, as set out in Article 14 of the International Covenant on Civil and Political Rights. In this regard, the Trial Chamber noted that Article 21 of the Statute afforded substantially the same rights as Article 14 of the Covenant (Prosecutor v. Milošević 8 November 2001, paras. 9–10).¹⁵

Third, the Amici Curiae impugned the independence of the Prosecutor. In 1998, the Security Council urged the Office of the Prosecutor “to begin gathering information related to the violence in Kosovo that may fall within its jurisdiction”. The Amici Curiae argued in their brief that the Prosecutor lacked independence and had thus violated Article 16(2) of the Statute. The Trial Chamber held, however, that initiating an investigation at the behest of another is not indicative of a lack of independence. A lack of independence would exist where the assessment of evidence and the decision whether to indict an individual were based on someone else’s instructions. Since there was no suggestion that the Prosecutor had acted upon the instruction of any government, body, or any other person in her decision to indict Milošević, there was no failure of independence and thus no violation of the Statute (Prosecutor v. Milošević 8 November 2001, paras. 12–17).¹⁶

Fourth, there was an allegation of bias. The Amici Curiae contended that the ICTY was incapable of providing Milošević with a fair trial or of protecting his fundamental rights (Prosecutor v. Milošević 19 October 2001, pp. 7–8). Milošević argued that the “very psychology of the enterprise is persecutorial” (Milošević Motion 30 August 2001, pp. 7–8). The Trial Chamber construed these arguments as an allegation of bias on the part of the ICTY and of the Trial Chamber itself. The Trial Chamber considered a decision of the Appeals Chamber according to which there were three means of establishing bias and found that only one was relevant in the instant case: the test whether a reasonable observer, properly informed, would reasonably apprehend bias. The Trial Chamber dismissed the argument since neither the Amici Curiae nor Milošević had met this test (Prosecutor v. Milošević 8 November 2001, paras. 18–22).¹⁷

Fifth, the Amici Curiae contended that the ICTY lacked jurisdiction over Milošević because of his status as the former President of the FRY. Article 7(2) of the Statute provided, “The official position of any Accused person, whether as Head of State or Government … shall not relieve such person of criminal responsibility nor mitigate punishment” (Statute of ICTY, Art. 7(2)). The Trial Chamber therefore held that there was no basis for challenging this Article, “which at this time reflects a rule of customary international law” (Prosecutor v. Milošević 8 November 2001, paras. 26–34).

Finally, the Amici Curiae argued that the ICTY lacked jurisdiction because Milošević was surrendered unlawfully: it was the government of Serbia that surrendered him, even though the arrest warrant was directed to the FRY (Prosecutor v. Milošević 19 October 2001, para. 15). The Amici Curiae also argued that, since the FRY did not allow extradition of its citizens, the transfer of Milošević was an abuse of process because the internal procedures of the FRY had not been followed. In rejecting this challenge, the Trial Chamber relied on Rule 58, which provided that “the obligations laid down in Article 29 of the Statute (which requires the cooperation of all States) shall prevail over any legal impediment to the surrender or transfer of the Accused … which may exist under the national law or extradition treaties of the State concerned” (Prosecutor v. Milošević 19 October 2001, paras. 35–51).¹⁸

With Milošević’s challenges to the jurisdiction of the Tribunal to try him dismissed, the proceedings now focused on preparing the case for trial.

The three indictments: Croatia, Bosnia, and Kosovo

Milošević was initially indicted along with other high-level military and political leaders of the FRY and Serbia for the events in Kosovo in the summer of 1999. On 5 September 2002, the Trial Chamber severed Milošević’s trial from that of his co-accused, so that he could be tried separately (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 5 September 2002).¹⁹ Milošević would be the subject of a trial devoted solely to him, and his indicted associates would have to wait another 4 years before their trial would even begin.²⁰

On 29 October 2001, via an oral decision, the Trial Chamber granted leave to amend the Kosovo Indictment, confirming that the Second Amended Indictment was the operative indictment for the Kosovo phase of the proceedings (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 29 October 2001).²¹ In that indictment, Milošević was charged pursuant to Article 7(1), individual criminal responsibility, and Article 7(3), superior criminal responsibility, with murder, as a violation of laws or customs of war, and with four crimes against humanity: deportation, other inhumane acts (forcible transfer), murder, and persecution on political, racial, and religious grounds.

In the autumn of 2001, following the election of Carla Del Ponte as the new ICTY Prosecutor, Judge Almiro Rodrigues confirmed the initial Croatia Indictment against Milošević and Judge Richard May confirmed the Bosnia Indictment against him (Prosecutor v. Milošević 8 October 2001; 22 November 2001). Both cases were subsequently assigned by the President of the ICTY to Trial Chamber III (Prosecutor v. Milošević 9 October 2001; 23 November 2001b).

On 29 October 2001 (Motion Hearing 29 October 2001, T.123) and 11 December 2001 Hearing, 11 December 2001, T. 32 (Bosnia), Milošević made his initial appearances on the Croatia and Bosnia indictments. Just as with the Kosovo Indictment, Milošević refused to enter pleas of guilty or not guilty.

These new indictments alleged that, from 1991 to 1995, Milošević was responsible for the furnishing of aid and support to the Serb populations during the armed conflicts in Croatia and Bosnia and plotted with the Serb leaders in those countries to secure Serb control over as much territory as possible. The means by which this was to be accomplished, as alleged by the Prosecution, was the killing, torture, rape, and forcible displacement of the non-Serb populations. Milošević was charged with grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, crimes against humanity, and, in Bosnia, genocide.

More specifically, in the Croatia Indictment, Milošević was charged pursuant to Article 7(1), individual criminal responsibility, and Article 7(3), superior criminal responsibility, with:

Article 2, Grave Breaches of the Geneva Convention of 1949: nine counts of wilful killing; unlawful confinement; torture; wilfully causing great suffering; unlawful deportation or transfer; and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly

Article 3, Violations of laws or customs of war: 13 counts of murder; torture; cruel treatment; wanton destruction of villages or devastation not justified by military necessity; destruction or wilful damage done to institutions dedicated to education or religion; plunder of public or private property; attacks on civilians; destruction or wilful damage done to historic monuments and institutions dedicated to education or religion; and unlawful attacks on civilian objects

Article 5, Crimes against humanity: ten counts of persecution on political, racial, or religious grounds; extermination; murder; imprisonment; torture; inhumane acts; deportation; and inhumane acts (forcible transfers)²²

Milošević was facing three massive indictments spanning three armed conflicts in the 1990s. What was to occur next—the joinder of the indictments—affected the course of the remainder of the proceedings.

Joinder of the indictments

On 27 November 2001, the Prosecution filed a motion for joinder pursuant to Rule 49, in which it sought to join the three indictments against Milošević into a single trial (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 27 November 2001; Motion for Joinder 10 December 2001).

The Prosecution asserted that the following considerations supported its motion for joinder. First, it referred to Rule 49, which provided that, “[t]wo or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused” (Rule 49 of the Rules, IT/32/Rev. 21 10 December 2009). A “transaction” for these purposes was defined in Rule 2 as a “number of acts or omissions, whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan” (IT/32/Rev.44 10 December 2009). The Prosecution therefore argued that the three indictments concerned the same transaction in the context of a common scheme, strategy, or plan because Milošević’s overall conduct in attempting to create “a centralised Serbian state encompassing the Serb-populated areas of Croatia and Bosnia and Hercegovina, and all of Kosovo” (Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić, and Stojiljković 27 November 2001, p. 5). The Prosecution called the Trial Chamber’s attention to paragraph 6 of the Croatia Indictment, paragraph 6 of the Bosnia Indictment, and paragraph 16 of the Kosovo Indictment, all of which alleged the forcible removal of non-Serbs from the territories in question. The Prosecution also argued that joinder of the three indictments would lead to a more fair and expeditious trial for Milošević. In the view of the Prosecution, a single trial would be shorter and would provide a more consolidated trial timetable (Prosecutor v. Milošević 27 November 2001, p. 4). Without joinder, Milošević would be litigating one trial, while simultaneously confronting two pre-trial phases (Prosecutor v. Milošević 27 November 2001, p. 15). Moreover, having three trials instead of one would require repeated testimony, and different trial chambers would have to consider the degree to which evidence or findings from one trial needed be incorporated into another (Prosecutor v. Milošević 27 November 2001, p. 15). The Prosecution further argued that a single trial would promote judicial economy (Prosecutor v. Milošević 27 November 2001, pp. 15–18). For example, witnesses testifying on history or policy would not have to give evidence three times (Prosecutor v. Milošević 27 November 2001, p. 17). The Prosecution also submitted that the trauma to victims would be lessened if they only needed to testify once (Prosecutor v. Milošević 27 November 2001, p. 18), and security concerns would be fewer if the witnesses only had to travel to the ICTY once (Prosecutor v. Milošević 27 November 2001, p. 18). Finally, the Prosecution maintained that a single trial would avoid inconsistency. In a joint trial, the same Trial Chamber would be deciding issues of credibility and evaluating the evidence and therefore would have a better chance of avoiding conflicting factual findings (Prosecutor v. Milošević 27 November 2001, pp. 18–19). A single trial would also obviate concern about the appeal of one trial judgment on the merits, while the second or third trial was still ongoing (Prosecutor v. Milošević 27 November 2001, pp. 18-19).

In their response, the Amici Curiae noted that Milošević did not recognise the ICTY and that there were therefore no issues for the Amici Curiae to submit on this issue on his behalf (Prosecutor v. Milošević 5 December 2001, p. 6). However, the Amici Curiae did point out that the Trial Chamber would have to consider the extreme scale of the single trial exercise and whether the Chamber was able adequately to deal with it (Prosecutor v. Milošević 5 December 2001, p. 6).

On 11 December 2001, having heard oral arguments from both parties and the Amici Curiae (Motion Hearing 11 December 2001, T68 et seq), the Trial Chamber gave its oral decision. The Chamber decided to join the Croatia and Bosnia indictments, but refused to join the Kosovo case with the others. In addition, the Kosovo case would be heard first, with the joint Croatia and Bosnia trial following later (Motion Hearing 11 December 2001, T.145). Two days later, the Trial Chamber issued its written decision on joinder (Prosecutor v. Milošević 13 December 2001). The Trial Chamber held that the essence of the test under Rule 49 on joinder was the determination of whether a “series of acts, committed together, formed the same transaction” or was a part of a common scheme, strategy, or plan and that, in exercising its discretion under the Rule, it had taken into account the entitlement of an accused to a fair hearing under Article 21(2) of the Statute; the interests of justice, which related to the accused as well as to the interests of the Prosecution and the international community in the trial of any accused charged with serious violations of international humanitarian law; and judicial economy, such as the avoidance of duplication of evidence and the avoidance of hardship to witnesses (Prosecutor v. Milošević 13 December 2001, paras. 28, 38–40).

The Prosecution was not satisfied with this decision and sought review before the Appeals Chamber.

The Appeals Chamber reversed the decision of the Trial Chamber. On 1 February 2002, the Appeals Chamber ordered that the three indictments against Milošević be tried together in one trial (Prosecutor v. Milošević 1 February 2002). On 18 April 2002, the Appeals Chamber issued its reasons. It held that Rule 49 did not require that the events in Kosovo were committed together with the events in Croatia and Bosnia in order for all the trials to be joined (Prosecutor v. Milošević 18 April 2002). In other words, a common scheme, strategy, or plan could include the achievement of a long-term aim which, in the case of Milošević, was the forcible removal of the majority of the non-Serb civilian population from areas that the Serb authorities wished to establish (Prosecutor v. Milošević 18 April 2002, paras. 14, 20). Thus, Milošević would face 66 counts of genocide, crimes against humanity, and war crimes in a consolidated indictment of an unprecedented scope and size.

However, to say that Milošević was facing 66 counts does not adequately capture the size and scope of the case against him (see Additional file 1).²³ At the Tribunal, “counts” are simply a textual means by which the Prosecution organises “charges” in a written indictment. A charge is the vehicle by which the Prosecution alleges that an accused is responsible for a crime. In the indictments, a single count often referred to crimes in dozens of municipalities, cross-referenced to schedules attached to the indictment. In addition, the same factual scenarios are often charged under multiple counts. This all resulted in a gargantuan puzzle of charges, which can be estimated between 5000 and 6000 individual charges, each of which exposed Milošević to criminal responsibility.

The size and scope of each of the indictments were daunting. Now that they were to be tried together, the situation became even more pronounced.

An early estimate of the trial—which was provided at the status conference of 30 October 2001—predicted that, if the three indictments were to be tried together, the Prosecution case would require approximately 500 days (Prosecutor v. Milošević 30 October 2001, T.53). Taking into account the time the Defence would need to present its case, the total time for the trial was estimated to take at least 3 years (Prosecutor v. Milošević 30 October 2001, T.53). The Prosecution clarified in the motion hearing of 11 December 2001 that the estimated length of the trials, if separate, were in the range of 13 months for Bosnia, 10 months for Croatia, and 9 months for Kosovo (Prosecutor v. Milošević 11 December 2001, T.99). Although the Prosecution averred that the joint trial would mean an overall savings of time (Prosecutor v. Milošević 11 December 2001, T.99), the scope of the evidence it would seek to adduce was massive.

The number of witnesses anticipated for all three indictments was estimated early on to be approximately 600 (Motion Hearing 11 December 2001, T.89). It was clarified later by the Prosecution during a hearing on 11 December 2001 that the number of witnesses for all three indictments would be 300 (Motion Hearing 11 December 2001, T.97).

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).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).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).²⁶

Evidentiary matters

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.

Self-representation, Part II

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).⁵⁰ 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).

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).⁵⁵

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).⁵⁶ 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.

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).

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.

Evidentiary matters

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).

Attempt to be provisionally released

In mid-November 2005, pursuant to an oral order from the Trial Chamber (Hearing 15 November 2005, T.46481–46484),⁵⁹ the Registry received and filed reports of three physicians who had conducted medical examinations of Milošević in early November.⁶⁰ Following an oral request by Milošević for provisional release in mid-December (Hearing 12 December 2005, T.47258–4725), Assigned Counsel requested that the Trial Chamber grant Milošević’s request for the purpose of medical treatment in Moscow (Prosecutor v. Milošević 20 December 2005).⁶¹ In January 2006, the Trial Chamber instructed the Defence to submit any additional material, including the guarantees from the Russian Federation (Prosecutor v. Milošević 11 January 2006, p. 3). One week later, this was done, along with a personal undertaking from Milošević (Prosecutor v. Milošević 22 December 2005).⁶²

Death

On 11 March 2006, Milošević was found dead in his cell. As a result, on 14 March 2006, the Trial Chamber officially terminated the proceedings (Prosecutor v. Milošević 14 March 2006).

This latter finding was most likely related to some media reports speculating that Milošević had been murdered, in particular by poisoning.