http://www.guardian.co.uk/Print/0,3858,4570212,00.html Milosevic the advocate ------------------------------------------------------------------------ -------- Playing the odds in the justice game Geoffrey Robertson QC concludes our series by looking at the impact of the Serb leader's decision to defend himself Geoffrey Robertson QC Thursday December 19, 2002 The Guardian Visit the dimly-lit public gallery of the Hague courtroom, and at first you have the sensation of entering an aquarium. You peer through thick bullet-proof glass at the denizens of a brilliantly back-lit tank, where black-gowned lawyers flap like manta rays while the big fish hovers in a corner. A sudden Tannoy announces the entry of the judges and brings the scene into focus: prosecutors, judges and defendant exchange polite "good mornings", and another day begins in the trial of Slobodan Milosevic. When I visited last Wednesday, the evidence mainly concerned the shelling of Dubrovnik in 1991. The city's mayor painstakingly tracked the thousand-plus shells that exploded on the roofs of the old town, a world heritage site, and identified the civilians found dead in the rubble. The defendant was hundreds of miles away at the time, and the best the witness could do to implicate him was to quote a hearsay boast by a Serb commander ("Slobo told me this, Slobo told me that"). The prosecution seeks to prove that he had "command responsibility" for the army that committed this cultural crime against humanity. Its case, which holds him accountable for a decade of war crimes in Kosovo, Croatia and Bosnia, will continue well into next year. The trial began last February, when the crucial question was whether the Hague court could slough off the rebuke of "victors' justice" and provide a fair trial for this demonised defendant, who seemed determined to play no part in it. Ten months on, and that question has been answered, although other problems for international justice have surfaced in this, its teething time, before the advent of the international criminal court. The most remarkable feature of the trial so far is how Mr Milosevic has become a willing and enthusiastic party. At the beginning, he adopted the tactic of King Charles I, refusing to plead on the ground that the court was unlawful. This tactic would have sabotaged the trial and the judges were worried enough to engage an expensive team of amici curiae counsel to take every available point in his favour. But once the trial opened, the defendant changed his position: he made a rabble-rousing opening statement and began to cross-examine witnesses vigorously and sometimes effectively; he seems now to preen himself on his ability as an advocate. Unlike Charles I, who preserved his martyr status by resisting all temptation to enter the forensic fray, Mr Milosevic's participation in the proceedings has served, ironically, to legitimise them. A similar volte face happened at Nuremberg, where Hermann Goering initially told his fellow prisoners to make only one statement to the judges - a defiant catchcry of one of Goethe's warrior heroes, loosely translated as "kiss my arse". But as the day of trial came closer, the defendants became fascinated by the fairness of the adversary procedures, and decided to play the justice game after all. The Hague proceedings have become almost excruciatingly fair, since any point that the defendant overlooks in cross-examination (and he overlooks quite a few, since he often prefers to make speeches than challenge testimony) is picked up by the amici team: an English QC, an Australian law professor, and a leader of the Serbian bar. As David Shayler discovered, no one who self-defends at the Old Bailey would ever receive this degree of support. Conspicuous fairness In its conspicuous fairness, the Milosevic trial is a reminder of how notions of due process have changed for the better since Nuremberg. There is no death penalty, and the defendant has a right of appeal and is entitled to full and advance disclosure of all prosecution evidence. For all the hi-tech wizardry of the courtroom, however, the plodding orality of the English criminal trial has been unnecessarily preserved. The mayor of Dubrovnik was led through his evidence in chief over three hours of painstaking questioning: it would have been much quicker to summarise his witness statement, then tender him for cross-examination. There are signs of problems ahead. Although Mr Milosevic looks in robust health, the judges have expressed anxiety about his medical condition, which will be reviewed after the Christmas break. If he becomes too ill to continue, they have contemplated going on with the amici representing him. But this expedient would be denounced as a "show trial". Since abandonment of the trial would abandon victims of the Balkans war, a better alternative would be to adjourn the proceedings then require the prosecution to proceed on a limited indictment. If, unhappily, the defendant does become terminally unfit, the only sensible way forward would be for the proceedings to continue, but as a "truth commission" rather than as a court. Such a metamorphosis would require a change in the UN statute which established the tribunal. For the present, however, the most commonly voiced fear is not that the trial is unfair but that it is too fair, since it provides Mr Milosevic with a television link to Serbia, where his proteges in the neo-fascist Radical party may reap electoral benefit from his defiance. The effect of televising the trial is difficult to gauge; his domestic political stock rose after his opening speech, but 10 months of prosecution evidence has reduced it. The crunch will come next summer, when the prosecution closes its case and the defendant must decide whether to go into the witness box to face cross-examination - the step that destroyed Goering. He may instead make an opening statement which could be used as a platform for a political harangue. This prospect makes it ironic that the court is located in a nondescript plaza named after Winston Churchill, who was all for assassinating Nazi leaders, rather than giving them a trial which he feared they would use as a propaganda platform. (He was outvoted by Truman, who had an idealistic faith in due process, and by Stalin, who enjoyed show trials where all defendants were shot at the end). The risk that the witness box will become a soapbox exists whenever a political leader is arraigned, because justice must be seen to be done and every defendant must be given his day in court. But if the procedures remain fair and the judicial reasoning is compelling, a conviction by this tribunal should carry conviction, even in Serbia. My concerns about fairness to Milosevic will strike victims of Serb aggression such as Jadranka Cigelj, who wrote about her experiences in Tuesday's Guardian. But you do not uphold human rights by denying them to those you believe have abused them. Milosevic is, for the present, entitled to due process and a legal presumption of innocence. If he is convicted of a crime against humanity, of course, the position then changes. His lack of remorse should disentitle him to a "soft option" cell in Finland for a sentence of "life that means life" imprisonment. He might be ordered to serve it in Mali or in the Falkland Islands or St Helena. For all its pettifogging progress, the trial does signal the end of the age of impunity, when tyrants left the bloodstained stage with an amnesty and their Swiss bank accounts intact. Whether, at the end of the day, Milosevic is acquitted or convicted, the proceedings thus far give no serious reason to doubt that the international shift from appeasement to criminal justice is not only right in principle, but is workable in practice. . Geoffrey Robertson QC is president of the UN special court hearing atrocity cases in Sierra Leone, and the author of Crimes Against Humanity Guardian Unlimited C Guardian Newspapers Limited 2002 Serbian News Network - SNN [EMAIL PROTECTED] http://www.antic.org/
