Milosevic was not the only one in the court to be cheated of a verdict

Milosevic was not the only one in the court to be cheated of a verdict
The Times (London) - March 21, 2006, Tuesday

By: Steven Kay

We have to suffer in silence as others condemn our efforts, writes the ex Serbian leader's QC, Steven Kay

When Judge Patrick Robinson officially ended the proceedings in the trial of Slobodan Milosevic in The Hague last Tuesday, those who assembled to hear the pronouncement were subdued and appeared stunned. A courtroom that had convened many times over the previous four years and had experienced many days of contentious litigation was for the first time not open to argument. The outcome of the case was apparent to all -there would be no verdict.

People who had devoted their lives over the past five years to this most complicated of cases were to see no conclusion and had to suffer in silence as others were about to condemn their efforts. Preparations made for the final briefs to be handed in at the conclusion of all the evidence and started months, if not years, before, were in vain. The judges who had been marshalling the evidence and drafting the legal framework for their judgment would not be called upon to render justice. Decisions made in the course of the trial remained only as a legacy for other trials. The reactions to the death and the debate that followed were inconsiderate to the labours of others.

Staying behind in the courtroom after the sombre departure of the judges, it struck me how we had all aged. The stress of the trial had not only had its effect upon the main participant Milosevic; there had also been the death of the original presiding judge Sir Richard May and no doubt it had taken its toll on others behind the scenes who had their own tales to tell. I looked at Gill Higgins standing next to me who had had a rollercoaster of a case. At one stage she had worked for a year pro bono and was then appointed my co-counsel and throughout, paid and unpaid, kept our case together. Geoffrey Nice, QC, who had borne the burden of the prosecution case, was the first to come over and with great courtesy shook hands. This was not a case that had permitted easy relationships but one could only but admire his skill and determination as an advocate. "What will you do next?" A question often in your mind during the trial and now a reality without an answer.

This trial involved many more people than those of us seen in court that day. In our defence room we had four case assistants watching the all-too-brief four minutes of the proceedings with the intensity that only dedication can summon.

They were also originally pro bono and the quality of their work was so brilliant that we had recently decided to pay for them ourselves to ensure the quality of our final brief. The prosecution, judges and the registry had many behind the scenes who, for years, had been working ceaselessly to see this trial through.

As the official investigation into the circumstances of the death of Milosevic takes place, there is also another investigation going on into the nature of the trial. Commentators compare it with that of Saddam Hussein in Baghdad -where the proceedings were apparently designed to avoid the perceived problems of the Milosevic proceedings. The Baghdad trial is descending into conflict and controversy with Saddam describing proceedings as "a comedy" and the former president of the court resigned because of "outside influences". Plainly international justice is a tough area in which to succeed.

The Saddam and Milosevic trials are not similar cases. Saddam is on trial as a perpetrator of a crime; the issue is his role as a participant in a single event.

Milosevic was alleged to have had command responsibility for the crimes of subordinates and to have been part of a joint criminal enterprise that had planned and ordered by using de jure and de facto powers and so was responsible for crimes by others.

Taking a single event in the Milosevic case would not have produced a provable case for the prosecution. Its allegations depended upon proving all the architecture that surrounded him as President of Serbia and his later role as President of the Federal Republic of Yugoslavia. The case was based upon his historical actions and political manoeuvres which, it was claimed, provided additional evidence to prove his liability for the crimes charged. That required evidence of the political institutions and the need to chart the political dissolution of the former Yugoslavia. Or could it have been done differently?

At various stages in the trial the joinder of the three indictments for Kosovo, Croatia and Bosnia had been raised by the judges. At the end of last year as court-assigned defence counsel we were firmly of the view that there should be severance and presented every argument possible in support without requesting it.

The reason? Milosevic did not want it and joined the prosecution in a bid to keep the three indictments together. He had deliberated for a long time and expressed his decision only when we were in court. Our duty to follow instructions was clear. The judges had no option other than to follow the wishes of the parties.

It has to be said, however, that the Kosovo indictment by itself provided a trial that was of a size and scale that would have been enough for any lawyer to be involved with in a lifetime. Add to that the Croatia and Bosnia indictments and you get a trial that was of an impossible size. While the adversarial system of justice may cope with trials of perpetrators, it utterly fails to deal with trials of the Milosevic type. I also doubt whether an inquisitorial trial could render better justice, particularly when the court has no control over the territory that it is trying.