Public, Victims' Rights Need Protection

Milosevic, with help from the Trial Chamber, continues to amputate the Prosecution’s case. In its latest effort to be fair to the stubbornly unrepresented Accused, the Chamber allowed Milosevic nearly twice as long to cross examine Stjepan Kljuic as the Prosecution took on direct examination. It led Geoffrey Nice to inform the Court that the Prosecution was considering foregoing testimony by “more interesting” witnesses given the time the Court allowed for cross examination.

The Prosecution’s dilemma is occasioned by several factors, some the function of a large unwieldy case, others resulting from Milosevic’s approach and the Chamber’s rulings, as the judges attempt to meet their responsibility to assure a fair and expeditious trial. While Milosevic continues to declaim his rejection of the Tribunal and the proceedings against him, he has also abided by its rules for the most part. That hasn’t kept him from stretching the limits of the rules and subverting the Court’s enforcement of them. For example, since the Accused is unrepresented, the Court has established its own rule of thumb: if the Prosecution takes an hour and a half to examine its witness, the Court allows the Accused equal time. Nearly always, Milosevic argues for more time, though much of his cross examination is irrelevant and repetitive. He often saves critical topics until his time is nearly ended. Whether intentional or not, the Court is then faced with its own dilemma – whether to cut off relevant questioning in the interests of time and consistency, or to grant Milosevic more time to pursue important issues, though it rewards his earlier waste of time.

The Prosecution’s dilemma comes from the fact that the Court has strictly limited the time it has to present its case. Yet, the Court has rejected a number of time-saving measures proposed by the Prosecution, measures that are more common in civil law inquisitorial legal systems, than in the common law adversarial model that more heavily influences the Tribunal (e.g.g. summarizing witnesses, written statements in lieu of oral evidence). To prove the 66 charges brought against Milosevic within a strict time limit requires careful planning. While the Prosecution can pretty much plan how long each of its witnesses will take on direct examination, it has no control over the time the Court allows Milosevic on cross examination. Its present trial plan was based on the Court’s past practice of allowing equal time for cross examination as taken for direct examination, or in the case of 92bis witnesses (those presenting written statements, but subject to cross examination), up to one hour. When the Court allowed Milosevic to cross examine Mr. Kljuic for approximately twice as long as the Prosecution took, it must have shredded the Prosecution’s plan – particularly if that means they can no longer count on the informal equal time rule. Judge May acknowledged the problem in response to Mr. Nice’s intervention, 'N doubt there is a problem.' While the Court did not address the issue at that time, there is little doubt it will have to do so in the near future.

Part of the difficulty is that ICTY rules allow the defense to present some of its case through prosecution witnesses while they are being cross examined. Rule 90 H provides that 'cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case of the cross-examining party, to the subject-matter of that case.'

It is a sensible rule, allowing an accused to elicit evidence that supports his case when the witness is on the stand, rather than requiring the accused to re-call the witness. The difficulty arises where the Court has established a definite time limitation for the Prosecution's case, as it has in the Milosevic trial. As pointed out above, it seriously detracts from the prosecution's ability to plan and present a coherent case that proves all the charges in the indictment. In essence, the accused usurps a portion of the time allotted for the prosecution's case.

The trial chamber is duty bound to assure a trial is fair. Where there is an unrepresented accused, the duty is greater and the court will allow him greater leeway. In Trial Chamber III's great care for the rights of the Accused Milosevic, however, there seems less concern for the rights of the public, represented by the prosecutor, to a full and fair determination of the guilt or innocence of the Accused. The Chamber has most frequently responded to the Prosecution with impatience and irritation, showing little understanding for the difficulties it is facing and little appreciation for the efforts it has made to comply with the Court's orders. This likely reflects the perspective of the traditional adversarial system, with its stricter emphasis on the rights of the accused against what is seen as an all-powerful state. The inquisitorial system shows a greater concern for the rights of victims, allowing them to directly participate in criminal trials in some states, and the general public. In the United States, both at the federal and state level, popular movements of citizens have forced open the doors of courtrooms, allowing victims to have a voice. In the new statute of the International Criminal Court, victims are also given a more important role than they are at the ICTY.

While there is a need for greater recognition of victims’ rights and the rights of the public in general at trials before the ICTY, it need not be accomplished through the reduction of rights of the accused. There is no right to unlimited cross examination just as there is no right to irrelevant and repetitive cross examination. Because the Court has accepted Milosevic’s insistence on self-representation at the same time he refuses to recognize the court’s legitimacy, it has assumed a greater burden. That burden is not confined to protecting the rights of the Accused. The Court continues to carry responsibility to assure that the victims – and the broader public -- also receive a fair trial. That is what underlies the system of public criminal justice. It represents a bargain between the people and [in state systems] their sovereign that the people won’t seek revenge, if the law will render justice. One hopes the Trial Chamber and the ICTY will broaden their view of the interests involved -- and act to protect them equally.