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SHOW TRIAL AT THE HAGUE – A NEW PHASE.
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Alexander Mezyaev,
Doctor of International Law,
Deputy Head of the Department of
Constitutional and International Law,
Academy of Business, Kazan, Russia.

Soviet Russia, 26 June 2004


The so-called "Milosevic trial" in the Hague Tribunal is continuing already
more than two years, but still passed its only first phase. In the end of
February the prosecution have closed its case - Prosecution case. Now is a
time for Defence case. During this phase of the trial Slobodan Milosevic
will present his witnesses.

Officially the first day of the Defence case scheduled for July,5. But it is
important to note that last Thursday, June, 17 was held the Pre-Defence
conference. On this conference the trial chamber considered the state of
preparation of the case.

S. Milosevic have presented to the court a list of witnesses which contains
more than 1630 names. Amongst them are the names of Bill Clinton, Tony
Blaire, Gerhard Schroeder, Hans-Dietrich Genscher and many others.  S.
Milosevic also demanded that the court issues an obligatory order to some
western governments to present some relevant intelligence documents. The
court asked Mr. Milosevic to consider how to reduce the list, but he
answered that there are dozen of thousands people who want to testify for
his defence and it will be very difficult to make the list shorter. Formally
court did not asked to reduce the length of the list, but have imposed
several unfair restrictions, which will lead to this result. For example,
the trial chamber restricted defence case only to 150 days. This is exactly
two times less than the prosecution had. This obviously unjust decision was
explained by an argument that the most of the time was given to Mr.
Milosevic for his cross-examination. The only thing that the judges have
forgotten, is that Mr. Milosevic had to cross-examine prosecution witnesses!
They were witnesses who testified against him!  So, the Hague tribunal once
again demonstrated that it is not in a position to ensure the elementary
norms of fair trial, first and foremost - the equality of parties.

Slobodan Milosevic protested against this decision. He said: "I am here to
defend the truth". And of course it is impossible to impose time limits
(more over unjust time limits!) for the determination of truth. In the same
time it is quite logical why the court, nevertheless have imposed this time
limits. The full truth, if determined, will be a great damage for this
tribunal.

It is interesting to note that during the Pre-defence conference the
prosecution demanded that S. Milosevic should present in advance a detailed
summary of the future testimony of defence witnesses. This demand was
shocking even for amicus curiae, when Mr. Kay said that such a demand means
the disclosure of the whole Defence case. Nevertheless, trial chamber ruled,
though with some reservations, in favour of the prosecution.

Mr. Milosevic still don't include his name in the list of witnesses.
Probably he will do it at a later stage in order to appear before the court
as a witness. The rules of procedure prescribe that in fact the evidence is
only the witness testimony. All other statements by the accused may be
considered by trial chamber, but in any way they are not an evidence. That
means that all statements made by Mr. Milosevic during the Prosecution case,
including his famous Opening Statements in February and September, 2002 are
only the matter for the trial chamber what probative value "if any" it will
have.  This also means that all that was said by Mr. Milosevic in order to
disprove some statements of witnesses, also do not consider as evidence.
Contrary, all statements of witnesses are considered as evidence.
In this respect it is very important to mention the long time awaited
decision of the trial chamber on the acquittal, delivered on June, 16 - one
day before the Pre-defence conference. Tribunal's rules prescribed that
after the termination of the Prosecution case the accused may ask the for
the judgment of acquittal, if prosecution have not presented or have
presented insufficient evidence to sustain a conviction on one ore more
charges. In the "Milosevic case", it was more than obvious that the
prosecution did not present sufficient evidence in greatest number of
charges. In respect of several charges, prosecution did not present evidence
at all. First of all it concerns the charges in genocide and some charges
related to Kosovo indictment. Even the "friends of court" - amicus curiae -
asked the court to acquit Mr. Milosevic at least on these absolutely not
proven charges!

Everybody who follows the trial proceedings and who is familiar with the
ork of the Hague tribunal may guess the general mean of the decision of the
court in advance. However, even those were surprised! Judges ruled that the
prosecution presented sufficient evidence to all 66 (!) charges, including
genocide or (!!!) complicity in genocide. The real mean of such a decision
may be understood only if you are familiar with the details of the
Prosecution case. In fact, the prosecution not only presented insufficient
evidence, but have not presented a case at all. Even some western lawyers
recognised that such a case could never be accepted in any national court in
Europe. And it is too polite definition. During the prosecution case Mr.
Milosevic presented enough evidence that the prosecution used false
witnesses and even fabricated evidence! If one calls things by their proper
names, such a trial would not only fail in any European court, but would be
a reason to put on trial the members of the prosecution! If after such kind
of a trial the judges ruled that the prosecution have presented sufficient
evidence to all counts and accused could not be acquitted in relation to any
of the charges, it may mean only one thing. It means that the decision of
the court is already adopted and it has nothing to do with any evidence,
which will be or will not be presented.

Nevertheless, Slobodan Milosevic is not defeated. Officially, "his" case is
called Prosecutor against Milosevic, but even during the Prosecution case it
became in fact Milosevic against the Tribunal.  I am sure that the defence
case will be even more successful and the lie will be definitely defeated.
It is important to say some words about new judge of the trial chamber. As
it is well known, just after the termination of the Prosecution case the
presiding judge Richard May have resigned. On Thursday, June 17, the
international public was able to see the new judge lord Bonomy. He is 58
years old, worked as a solicitor, prosecutor and during last 7 years - as a
judge of the Supreme Court of Scotland. To understand the real place and
role of new judge Bonomy as well as of judge Robinson, as a new presiding
judge of the trial chamber, it is important to understand the real reasons
of the resignation of judge May.

No doubts, Richard May made a great damage to the image of the tribunal. One
of the main purposes of the Hague tribunal is to make a nice impression on
the international public. Yes, to proclaim as guilty only one side of a
civil war. Yes, to punish only Serbs. Yes, no doubts, to punish Mr.
Milosevic. These are the aims of the tribunal too. But! All this should be
done in a "nice" way. Make a nice impression. Formal attributes of fair
trial should be shown. Not to be implemented, but shown only! Once again
returning in my reflections about that strange resignation of judge May,
once again I make a conclusion that the bad health was not a real reason for
it. R. May was just not ready to implement the task that was put to him. He
became a problem. Of course, it does not mean that he is stupid. Not at all.
But there was a great difference between the confronted personalities. In
the battle Milosevic - May, the last one was defeated. And it could not be
otherwise. Any judge of the tribunal would be defeated. And it does not
matter would it be a judge of the Hague tribunal or of any other tribunal.
The difference between personalities is too great. Judge May was a simple
judge in criminal cases, who has an experience just with simple criminals.
He was not ready, not intellectually nor psychologically, to handle the high
level of battle  presented by S. Milosevic!  But May was not personally
guilty for his defeat. Probably it is more correct to say that it was a
"guilt" of the former president of the tribunal, French Claude Jorda.
According to the law he was entitled to appoint judges to the trial and in
doing this he followed the classical rule: "no risk". Understanding his
responsibility for the main trial of the tribunal he had appointed a Briton
R. May. Obviously not Jorda, nor May, nor anybody else  realised how big
problems they will meet. They believed that S. Milosevic will be defeated
before the trial, that he will be broken. That counts did not and will not
be realised. But it is important to stress again the psychological
unprepairness of judge May to be a presiding judge in the "Milosevic trial".
May was nervous. He simply demonstrated unacceptable behaviour. If one day
I'll believe in a bad health as a reason for his resignation, it may be
illness of his nerves only.  By his behaviour, R. May discredited the whole
tribunal. I mean of course, not the tribunal itself, but its policy to abuse
justice in a nice way. Very polite. I had a chance to attend different
trials by different judges of the Hague tribunal. None of them were so
unprofessional as R. May.  It does not mean, of course, that all these
judges do not execute all orders they get. But they do it not in a so
abusive manner as judge May did. To make a conclusion, I am sure that R. May
was just taken away from the scene exactly because he was not enough
professional. Probably it was even quite unfair when during the special
meeting in honour of May everybody was talking about his . professionalism!
May was pushed to resign because he openly demonstrated his attitudes,
openly worked for prosecution.

The Hague tribunal understands that the judgment and punishment of Mr.
Milosevic will not be recognised by the international community if it will
be a result of this kind of trial. Therefore, May just had to be resigned.
It does not mean that the judgment and sentence will be different. Judge May
simply became a danger to the image of the trial. Not to the fairness of the
trial - but to its international image.

In fact, not lord Bonomy, but Patrick Robinson have replaced R. May as
presiding judge.  As for the new judge Bonomy, he is just a judge of
criminal cases, and in that sense he is not better than May. Having
experience in trying simple criminals does not mean that one is ready to try
a former head of state, a recognised leader of a nation. Moreover to try a
person like Slobodan Milosevic who is much more bright than all the Hague
judges taken together. The intellectual level and personalities just can't
be compared. That was the problem of R. May.  There is no indication that
new judge Bonomy will be able to resolve this problem.

Therefore, the resignation of judge May will not change the things at all.
The last decision of the "new" trial chamber is a great proof of that.

* * * * *

In addition to the "Milosevic trial" it is very important to follow the
other trials of the Tribunal. It is not overestimation to say that in other
trials the preparation of justification of the future judgment in
"Milosevic case" is going on.

Thus, for example several weeks ago the Appeals Chamber delivered its
judgment in Krstic case. The Chamber ruled that there was genocide in
Srebrenica in July, 1995. It means that this became a historical and
judicial fact! Taking into account that Srebrenica is one of the counts in
the indictment against S. Milosevic and the fact that the prosecution failed
to present any sufficient proofs of this count, the real meaning of this
Appeals Chamber ruling becomes clear. Now it is not necessary to prove that
Milosevic committed   genocide, simply a link should be established between
him and others, for example with Krstic or his superiors. Moreover, the
trial chamber should follow the decision of the highest (Appeals) chamber.
It is not so simple of course, but this is the general scheme.

A little bit earlier, the same Appeals Chamber delivered its judgment is
Brdjanin case. In its decision, the Appeals Chamber reversed the previous
decision of the trial chamber concerning the acquittal of the accused on the
count of genocide. The court ruled that the special intent is not required
in the circumstances of the case. But all lawyers in the world know that
this is an obligatory requirement. The court reached its findings using
again not only defective theory of so-called joint criminal enterprise
(which exists only in ICTY and was produced specially to simplify proving
the guilt), but also the "developed" kind of this theory - "the third level
of joint criminal enterprise". The defectiveness of that theory is
recognised not only by the majority of world lawyers but even by some judges
of the Hague tribunal!  The last decision of the trial chamber in "Milosevic
case" must be considered in the light of this decision. Two old judges of
the chamber were divided in relation to the question whether S. Milosevic
was a member of joint criminal enterprise, and only the vote of new judge
Bonomy decided the matter in favour of the prosecution.

It is quite obvious that the Appeals Chamber delivered its decision in the
"Brdjanin case" in order to save the main charge in the "Milosevic case".
One should also point out the long time awaited trial of the former
president of the Assembly of Republika Sprska and member of Bosnia and
Herzegovina presidency Momcilo Krajisnik. Using the secret witnesses became
so usual thing in the Hague tribunal that it can't surprise anybody. But the
secret trial as a whole is something new even for this tribunal. Practically
around 30 per cent of hearings up to now were held in the so-called closed
sessions. It means that public can get no information on the proceedings.
Moreover, the hearings are being postponed all the time without any
explanation.

Similar strange things happened in the Babic case. As it is well known, in
December 2003, the former president of Republika Srpska Krajina Milan Babic
had signed a special agreement with the prosecution. According to this
agreement Babic accepted his guilt on one count and took an obligation to
testify against all the people the prosecution would find necessary. Such a
"cooperation" with the prosecution usually leads to a short sentence. (Like
in Erdemovic case, where the accused who killed more than 100 people was
sentenced to 5 years of imprisonment). M. Babic (as well as Erdemovic)
already testified against S. Milosevic. It is worth to remember: the
prosecution gave up from 14 other witnesses in exchange for the prolongation
of Babic's testimony! By the way, during that testimony S. Milosevic showed
that the evidence was false and fabricated.

Some days ago the pronunciation of sentencing judgment for Milan Babic was
announced. But suddenly, without any explanation it was postponed.
There was also a status conference in the Seselj case on June 14. Already
more than one year passed, since Mr. Seselj is in ICTY detention, but his
case still is not prepared for a trial. The prosecution is in a real
trouble. The trial has not yet started but Seselj already won one point. The
trial chamber excludes from the indictment against Seselj the accusations
concerning events in Vojvodina. The tribunal has the jurisdiction only for
the crimes which were committed during the armed conflict. It is a
well-known fact that there was no armed conflict in Vojvodina. It is
interesting to note that the prosecution expreses its will to appeal this
decision of the trial chamber!

In the same time the registry of the tribunal prolonged the prohibition for
Mr. Seselj of any communication with the outside world except with the
defence counsel, whom Mr. Seselj doesn't have - he defends himself in
person; and with the inner family (monitored by prison officers). In fact,
this is a complete isolation. This decision was adopted last December and is
routinely being prolonged all these months. The main reason for this
isolation were the parliamentary and presidential elections. Last December,
in the parliamentary elections, the party of Seselj won the majority of
votes. In the first round of the presidential elections on June 13, the
candidate of Seselj's party Tomislav Nikolic won again - he got the majority
of votes. The second round of elections is scheduled for June 27. So, the
registrar of the tribunal again prolonged the regime of isolation for Mr.
Seselj. It is interesting to note how the "free" West and the Hague tribunal
are afraid of Seselj and his influence on the population of Serbia.
The future the "Seselj trial" may become for the Hague tribunal not the
smaller problem than the "Milosevic trial". Last autumn I had a chance to
attend a status-conference of Mr. Seselj in the tribunal.  Mr. Seselj looked
very fatigue and obviously had some health problems. But on the question of
a judge does he have some health problems he answered: "Yes, I do. I have a
mental suffering looking at you. Your robes remind me Roman Catholic
inquisition."  Even if Mr. Seselj really has health problems, he is ready
for the battle in the court. Whether the court itself is ready for this?

* * * * *

July 5 will be the first day of the Defence case of Slobodan Milosevic. Let
us wish all the best to this outstanding Man, to this recognised leader of
the Serbian people and of all other freedom-loving peoples. From the ancient
and the modern history we know very well that the Serbian people never gave
up! We believe in you, Comrade President!

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