ASSESSING THE MILOSEVIC TRIAL

Naama Haviv, Clark University

The abruptness with which Slobodan Milosevic䴜s long trial was ended by his death left the international criminal justice community reeling. Already wracked with controversy 䴋 about the length, the quality of justice, the legitimacy of the charges 䴋 Milosevic䴜s death leaves his trial with an ambiguous legacy. Questions remain about the value of the trial 䴋 for the former Yugoslavia, for the international community, and for international criminal justice in general.

It is these questions with which members of the criminal justice community grappled during the International Conference on The Milosevic Trial: The Verdict, held at the National University of Ireland, Galway in April 2006. Participants included Steven Kay and Gillian Higgins, court-assigned counsels to Milosevic, Michael Scharf, co-author of Slobodan Milosevic on Trial, and William Schabas, author of The UN International Criminal Tribunals. They debated the legacy that the trial will leave not only for the institution of international law, but for history. The bulk of the debate centered on procedural issues of the trial: the scope of the trial, the length of the trial, and the legitimacy of indicting Milosevic on the charge of genocide.

Milosevic was charged not only with several different crimes 䴋 including crimes against humanity, grave breaches of the Geneva Conventions, violations of the laws or customs of war, and genocide 䴋 but for these crimes in three separate geographical locations: Bosnia-Herzegovina, Croatia, and Kosovo (though Milosevic was only indicted for genocide in the case of Bosnia-Herzegovina). To further complicate matters, the trials for all three of these geographical cases were combined into one. The resulting trial, participants widely agreed, took on too much.

Some scholars argued that Milosevic should only have been indicted in the case of Kosovo; as it was the most recent incident, justice would have been better served by fresh memories and more widely available witnesses. The case of Croatia, by contrast, had happened ten years prior to the start of the trials in February 2002 䴋 some would argue the case had grown cold, and difficult to prove. The case of Bosnia-Herzegovina, moreover, may have been the most controversial of all the indictments. Proof of Milosevic䴜s connection to crimes committed in the province may have been tenuous to begin with, and six years after the crimes with which he had been charged had been committed it was even more difficult to assess his level of involvement. Combining all three geographical cases into one, moreover, dramatically increased the length of the trial and wore down the prosecutors, the defense counsels and the defendant..

Finally, the decision to indict Milosevic for genocide in the case of Bosnia-Herzegovina 䴋 citing the murder of thousands in the safe-zone of Srebrenica in July 1995 䴋 was highly controversial. Perhaps most importantly, many scholars believe that he could not possibly have been found guilty in this case. Proving Milosevic had any control 䴋 let alone command responsibility 䴋 over the Bosnian Serbs who committed crimes in Srebrenica was certainly an uphill battle. Levying a charge of genocide is an intensely serious matter; indicting Milosevic with genocide served to indict Serbia in general in international public opinion. To charge Milosevic with genocide, and fail to convict him, could have been a serious blow to the institution of international justice.

If the goal of the Milosevic trial was to convict, then the legacy of the trial may have been one of failure. The trial was too complex, too long, and spurious charges may have been levied ‰¥ã all blows to the criminal justice system whose job it is to convict, and thereby deter future crimes. As Michael Scharf summed up, future trials must learn from this to ‰¥þkeep it short, keep it under control, and keep it fair.‰¥ÿ

But was conviction truly the only goal of the Milosevic trial, indeed, of any criminal justice proceeding? Some would argue to the contrary. If the goal was instead to produce a fair trial, where the defense was adequately protected, the defense team in Milosevic䴜s trial may have won a positive legacy. Certainly a main concern of many of those involved in his trial was Milosevic䴜s rights as a defendant. Though Milosevic insisted on defending himself, and often ignored or even abused his court-assigned defense counsels, the defense team appears to have worked to the end to, at the very least, defend his rights and the fairness of the trial.

Within this framework, the Milosevic trial may have moved the legacy of international criminal justice forward. Milosevic䴜s trial showed, at the very least, that even amongst seemingly insurmountable obstacles, the international community can arrange a trial that does more than offer victors䴜 justice. Though Milosevic䴜s supporters have denounced his trial and the International Criminal Tribunal for Yugoslavia in general as puppet trials, the defense team appears to have showcased the international community䴜s commitment to attempting fairness above efficiency. The lack of a verdict, in this sense, is beside the case 䴋 the victory for the institution of criminal justice would not have been greater for one.

Participants in April䴜s conference, for the most part lawyers and legal scholars themselves, were in fairness concerned more with the impact Milosevic䴜s trial has had on the system of international justice rather than on the legacy it has left in history. Scholars have argued, however, that the goal of international justice is not only deterrence, or protection of the institution of justice, but the creation of a historical record 䴋 a chance for a public airing, a historical reckoning of crimes past. The trial of Milosevic has produced volumes upon volumes of information that remain an integral source of information for historians and scholars. Testimony by victims, moreover, offered the sort of public hearing often sought by Truth and Reconciliation Commissions. Even the often controversial television re-broadcasts of Milosevic䴜s trial offer something for the public record.

In the context of the trial, however, there are of course several underlying issues to consider regarding the creation of a public record. First, it can be argued that the time and place for a public hearing is not, in fact, a trial. Long months of testimony by victims can wear down the entire process of the trial; some have argued that this sort of public record-making should be left to Truth and Reconciliation Commissions, where all victims would have a place to speak, as opposed to a trial, where only witnesses that move the case forward are chosen for public record. Perhaps most importantly, however, is Milosevic䴜s death 䴋 if the ultimate goal of criminal justice is the creation of a historical record, than Milosevic䴜s death leaves his trial with an empty legacy. Without a verdict, it has been argued, the historical record is left with a missing, and important, ending.

The legacy of the Milosevic trial appears, then, mixed. It did not produce a conviction or an acquittal 䴋 indeed, it produced no verdict at all. It produced a detailed historical record with a missing ending and a spotty public airing from victims. It did succeed, however, in moving the process of creating a system of international justice forward. Milosevic was the first Head of State ever to stand trial for crimes of this magnitude. The highest ranking member of the Nazi regime to stand trial at Nuremberg, for example, was Goering, not Adolf Hitler 䴋 and even he cheated justice by committing suicide before his hanging. It may be that there is value even just in the enterprise of bringing a man in Milosevic䴜s position to trial in the first place, regardless of the verdict. Those involved in the trial, moreover, were more concerned with the standards of justice and fairness than ever before. In this sense, at least, Milosevic䴜s trial was a valuable, important exercise.

The international criminal justice community certainly has a long road ahead of it. Trials of major players and major crimes will always create major controversy. Questions will always be raised about scope and legitimacy, and new challenges will always be with us. But perhaps the most important legacy the Milosevic trial leaves us with is the attempt: to define justice, to practice justice, and to bring justice.