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Monday, Jul. 09, 2001

A lot changed for Slobodan Milosevic during the period between his criminal indictment, on May 22, 1999, and his initial appearance before the U.N. war crimes tribunal less than a week ago. Not only did he surrender Kosovo, give up the Yugoslav presidency, and, most recently, fail in his efforts to escape extradition to The Hague, he even lost the power to rally meaningful numbers of Serb nationalists to his defense.

Now the only test apparently remaining for Milosevic is a legal one: Can he win in court? Yet his brief but pugnacious statements before the war crimes tribunal last week suggest that he has a very different question in mind: Should he even try?

A Long Legal Process

In contrast to the media tumult surrounding Milosevic's June 28 transfer to The Hague, the tribunal's chief prosecutor, Carla Del Ponte, sounded deliberately subdued. Indeed, her initial reaction was almost exaggerated in its reticence, with the prosecutor saying only that she was "satisfied" by Milosevic's arrival. (Given the importance of Milosevic's transfer to the success of the tribunal, one wonders what it takes to really please her.)

Del Ponte pointed out, quite rightly, that Milosevic's arrival marks only the beginning of the legal process, with the end being some time away. Judging from the tribunal's past practice, Milosevic's trial will inevitably be a long and arduous affair. The trial of General Tihomir Blaskic, a Bosnian Croat commander convicted last year of war crimes and crimes against humanity, lasted twenty-five months and included the testimony of 158 witnesses. Even now, more than a year after the verdict was reached, the defendant's appeal is still under review.

The Milosevic prosecution is likely to go on longer than that. Widely viewed as the leading arsonist in the Balkans conflagration, Milosevic is by far the most important defendant at The Hague. Everyone knows that the tribunal's success or failure will in large part be measured by its handling of his trial. The list of witnesses offering testimony will be long, and the mountain of documents entered into evidence will be high.

Moreover, as if these factors were not enough to ensure that immense resources will be allocated toward the trial, NATO governments have their own reasons to be generous in providing funding, evidentiary support, and other assistance. Understanding that their underlying justification for the Kosovo intervention is also under scrutiny, the Western powers will want to prove the case against Milosevic beyond any doubt.

Victors' Justice?

What is much less clear is how Milosevic plans to handle his defense. If his recent performance at The Hague is any indicator of his ultimate strategy, Milosevic may opt for a political approach. Certainly, at last week's hearing, he showed no sign of recognizing that he was appearing before a judicial body. Refusing to enter a plea or to appoint legal counsel, he challenged the legality and legitimacy of the war crimes tribunal.

By persisting in such an approach, Milosevic will in no way further his chances of obtaining an acquittal or a milder sentence. Previous defendants have repeatedly and unsuccessfully challenged the tribunal's legal underpinnings. As might be expected, such arguments hold little sway with the tribunal's members. At any rate, the tribunal's appeals chamber, its highest body, has already addressed the question of the tribunal's legality and has firmly rejected these arguments.

But, as Milosevic demonstrated during the Kosovo crisis (by choosing to expel hundreds of thousands of ethnic Albanians, rather than quietly wait out the NATO bombing campaign), he may be willing to play for high stakes. If, from his perspective, the tribunal is simply a political body in judicial drag — a NATO tool, as he suggested at last week's hearing — then any conviction it hands down will be, in his view, an illegitimate instance of victors' justice.

Offense as Defense

Milosevic's defense, if the word is even appropriate, may thus consist of accusing his accusers. Rather than justifying his actions on legal grounds, he may instead try to use the trial to put forward his views on the myriad political and military maneuverings of the Western powers during Yugoslavia's painful disintegration. If, as the chief prosecutor has promised, Milosevic's indictment is amended to encompass crimes committed in Bosnia and Croatia, this approach might even reveal some interesting information.

Given the risks — he faces a life sentence — it is still somewhat difficult to imagine that Milosevic will stick to a strictly political defense and not make an effort to defend his actions on the legal merits. Indeed, so far, no defendant appearing before the tribunal has followed such an absolutist strategy. Even while challenging the tribunal's competence to try them, all prior defendants have also attempted to defend themselves with reference to the applicable legal standards.

Yet Milosevic should, more than anyone else, be acutely aware of the weight of the evidence against him. He may even be correct in believing that he has nothing to lose by flouting the tribunal's authority. He may know that he has no chance of escaping a heavy sentence — not because the tribunal is biased, but because, given the crimes he has committed, a heavy sentence is the least of what he deserves.

Joanne Mariner is a deputy director of the Americas division of Human Rights Watch. Her previous columns about Kosovo can be found in's archive. The views expressed in her columns are her own, and do not necessarily reflect those of Human Rights Watch.

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