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Monday, Oct. 29, 2001

Even if he is no longer the world's most famous wanted man — having ceded that dubious title to Osama bin Laden — Slobodan Milosevic remains the world's most famous defendant. Without any question, the success or failure of his prosecution will have considerable impact on the future of international justice. It may even be scrutinized someday as a precedent for a possible bin Laden trial in an international court, an option that some commentators have already suggested.

Much has been said about the need for the U.N. war crimes tribunal to produce a resounding conviction in this case. Yet the success of the trial proceedings in The Hague should not be gauged solely by their outcome. While the evidence of Milosevic's guilt is compelling, it is also crucial that he be granted a full and fair opportunity to present a defense.

Uncooperative, unapologetic, and apparently unrepentant, Milosevic makes a challenging defendant. Many fear that his grandstanding, much in evidence during his first two court appearances, threatens to turn the proceedings into a political circus. Yet the credibility of the war crimes tribunal rests not only in its ability to substitute reasoned debate for theatrical performance, but, equally, in its willingness to allow Milosevic to tell his side of the story. The challenge facing the court is to find the correct balance between preserving courtroom decorum and permitting a vigorous defense.

Pretrial Dueling

Milosevic is making his third appearance before the tribunal today, in a hearing that is expected to take at least several hours. Unlike in previous hearings, whose importance mostly lay in allowing the players to size each other up, a number of substantive issues should now be addressed.

For one, the prosecution is expected to seek to join the two current indictments against the defendant, so that Milosevic can be simultaneously tried for crimes committed in Kosovo in 1998-99, and Croatia in 1991-92. The Kosovo indictment, which was originally issued in May 1999, near the end of the armed conflict there, charges Milosevic with three counts of crimes against humanity — including deportation, murder, and persecutions on political, racial or religious grounds — and one count of violations of the laws of war. The Croatia indictment, issued earlier this month, charges him with a total of 32 counts of war crimes and crimes against humanity. The chief war crimes prosecutor, Carla Del Ponte, has also promised to indict Milosevic for genocide — the most serious international crime — committed in Bosnia in the mid-1990s.

The prospect of trying Milosevic for all these horrific crimes in a single trial raises real due process concerns. While a consolidated trial would obviously save the tribunal time and resources, these benefits may be outweighed by the possibility of unfair prejudice to the defendant.

The risk is that, rather than assessing Milosevic's guilt for each separate offense, the fact-finder will be unduly influenced by the multitude of alleged crimes and come to view the defendant simply as a criminal. This concern may, however, be less acute in these proceedings, given that a panel of judges, not a jury, is the arbiter.

A Fair Trial for an Uncooperative Defendant

So far in the proceedings, Milosevic has stubbornly adhered to his strategy of refusing to recognize the legitimacy of the tribunal. Indeed, in his past two appearances, he has tried hard to give the impression that he is not even in a courtroom. Looking alternately bored and defiant, loudly condemning the tribunal as a "political tool," Milosevic has made it clear that he is not going to play by the rules of the court.

Substantively, he has refused even to enter a plea to the charges against him, or to do anything else, such as name a lawyer, that might imply that he recognizes the court's legal authority. The tribunal has done its best to make progress in the case despite this show of recalcitrance by lodging a not guilty plea on Milosevic's behalf, and appointing three lawyers to act as his surrogate legal counsel. The three are formally deemed "friends of the court," in keeping with Milosevic's refusal to accept representation, but it is obvious that their primary role will be to defend his interests in proceedings before the court.

Although Milosevic has so far refused to meet with his surrogate counsel, they have already stepped up to his defense. Earlier this month they filed a challenge to the tribunal's jurisdiction that essentially echoed, and elaborated upon, arguments previously asserted by Milosevic himself. Their motion disputes the legality of the way in which the court was created in 1993, by U.N. Security Counsel resolution, and claims that Milosevic was turned over to the tribunal in an illegitimate manner.

But these are losing arguments, at least to the extent they are meant to sway a judicial body. Other defendants before the war crimes tribunal have already made them, and the court's appellate chamber, its highest body, has firmly rejected them.

Indeed, Milosevic himself has already lost these arguments before, in a complaint he filed with the Dutch courts. On August 31, a district court in The Hague declared itself incompetent to rule on the legality of Milosevic's detention, ruling that the Dutch government's host state agreement with the war crimes tribunal bars the Dutch courts from interfering in pending cases.

"No Speeches"

Beyond its substantive legal rulings, the war crimes tribunal's most important decision today will lie in how it treats the defendant. Given Milosevic's contemptuous behavior, the court will be sorely tempted to limit his opportunity to speak. Indeed, at Milosevic's first appearance before the tribunal, the presiding judge ended up turning off his microphone to stop a political tirade.

For Milosevic's second hearing, the judge welcomed him to the stand with the warning "no speeches." (Unsurprisingly, the warning was ignored.)

But even though Milosevic is no model of countroom decorum, it is crucial that he be granted the opportunity to present his positions to the court, and to the world. This is especially true given that the rules of the detention unit in which Milosevic is held bars him — perhaps unfairly — from communicating with the press. His court appearances thus represent his only chance to present a public defense to the accusations against him.

The Nuremberg Precedent

Milosevic's courtroom theatrics are in some ways reminiscent of those of another famous war crimes defendant, Hermann Goering. Goering, who would rip his earphones off in disgust when feeling provoked by the prosecution, proved a brilliant and articulate spokesman for his views. Not only did he spar capably with prosecutors at the Nuremberg, he succeeded, at some points during the trial, at taking near command of the courtroom, to the dismay and embarrassment of chief American prosecutor Robert Jackson.

Like Milosevic, Goering seemed to believe that his countrymen would someday recognize his trial as a political farce. "We will be martyrs," Goering told his fellow defendants. "Fifty years from now they will erect statues of me all over Germany."

At Nuremberg, too, the war crimes tribunal faced underlying questions regarding its own legitimacy, and, indeed, the legitimacy of the legal rules it applied. The court understood, however, that its credibility would suffer in the long run if it appeared willing to restrict the rights of defendants to argue their cases.

There are no statues of Goering in Germany, and Nuremberg is remembered, not for Goering's rhetorical brilliance, but for its affirmation of the rule of law in the face of barbarity. When considering what limits to place on Milosevic's harangues, it is this precedent that the current war crimes tribunal should bear in mind.

Joanne Mariner works as a human rights lawyer in New York. Her previous columns on the Milosevic prosecution can be found in the FindLaw archive. The opinions expressed in this article are her own.

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