Del Ponte’s Deal

Geoffrey Nice

  • BuyTwilight of Impunity: The War Crimes Trial of Slobodan Milosevic by Judith Armatta
    Duke, 545 pp, £26.99, August 2010, ISBN 978 0 8223 4746 0

Slobodan Milosevic died in March 2006, a few months before his trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague would have ended. The trial, at which I led the prosecuting team, had already lasted just over four years. Although there could be no verdict, the trial left an immense, and at present largely inaccessible, archive of evidence: audio and video recordings of every witness complete with transcripts, together with a mass of contemporary documents, videos and other exhibits. For lawyers, the trial left behind new jurisprudence, together with procedural innovations that are already in use in trials still going on at the ICTY and other international criminal courts.

Only a few journalists followed the proceedings in The Hague on a regular basis. Judith Armatta was one of them, filing regular reports for the Coalition for International Justice from 2003 to 2006. Armatta wanted the tribunal to work. More than that, she, and others like her, were committed to seeing Milosevic and other indictees convicted. But, however understandable it may be to prejudge the guilt of those accused of grave crimes and to wish to see them punished, it does not enhance one’s powers of observation.

All court systems that function well do so because they are well supervised: by governments, parliaments and, most important, by a vigorous press. The international courts established by the UN, and the permanent International Criminal Court (ICC) set up in 2002, are effectively free from these controls. The UN is not a governmental institution willing to analyse critically the work of its courts. Within the UN, criticism is unwelcome. The General Assembly is not a parliament where a member may publicise a particular judicial failing. As for the media, international criminal courts are mainly of interest in the country where the alleged crimes were committed and where the perpetrators and victims lived. Since Milosevic’s arrest and trial, little that’s gone on in the tribunal has attracted international attention, aside from accounts of Radovan Karadzic’s arrest in 2008, after 12 years on the run, and Serbia’s continuing failure to deliver General Mladic to The Hague. The world’s press – unlike the press in the former Yugoslavia – is largely indifferent. There is a real need for critical, even sceptical journalists to oversee war crimes trials. The presumption of innocence could hardly be more important than when covering the trial of a man who was as inept as Milosevic was at running his own defence and who died before judgment was given.

Armatta dedicates her book to Sir Richard May, an English circuit judge who presided over the trial until just before the end of the prosecution case in February 2004, and died shortly afterwards. Despite this, most of her critical comments are directed at the judges’ failure to reform matters of procedure to the extent the prosecution sought, and to discipline Milosevic more firmly in his conduct of his own case. She takes my side in the ‘grumpy’ encounters I had – more frequent than I had recalled – with Judge Robinson, who took over as presiding judge when May was replaced by Lord Bonomy from Scotland. This is gratifying, but in her generosity to the prosecution she misses an important point. ‘Counsel,’ May remarked, ‘always thinks the judge has got it wrong and the judge always thinks counsel has got it wrong.’ Has Armatta really considered the judicial point of view fairly, when she criticises the judges for refusing various procedural and substantive applications I made on the prosecution’s behalf? The judges were obliged by the UN to conduct trials according to the (arguably inappropriate) adversarial model used in the UK, the US and many other countries, where constituent elements of the charges may be proved by the prosecution and where the accused tries to block that proof. Judges in an adversarial system are not strictly concerned with establishing ‘truth’: their task is to supervise a contest of proof and the fairness of this contest is critical to reaching a successful verdict.

The Hague court found itself dealing with the largest trial to date of a former head of state, and in particular with Milosevic’s conduct in three wars waged over a period of eight years. It’s no wonder that the court was cautious. Its decisions on the admissibility of evidence, on the timetable, and on Milosevic’s desire to represent himself were all appealed to the ICTY’s own appeals chamber in the course of the trial. The careful – if belated – decision to impose professional counsel on Milosevic was effectively reversed by that chamber, which made it look as though Milosevic had triumphed over the judges. The verdict, had there been one, would inevitably have been appealed – probably by both sides for different reasons – to an appeals chamber that seemed incapable of agreeing with the decisions reached by the trial judges it oversaw.

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