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Q: Late Sunday, the President of the ICTY, Theodor Meron, announced the resignation of Richard May of the United Kingdom, the presiding judge in the Milosevic trial. Officially, the resignation is due to the ill health of judge May. What was your first take on these developments?
Tiphaine Dickson: This is a spectacular development-- only days before the end of the presentation of the prosecution's evidence-- which has gone on for two years already. This resignation demonstrates that the length and complexity of this process, not to mention the hundreds of witnesses, 30,000 pages of transcripts, 500 videotapes, hundreds of audiotapes, and huge quantity of other exhibits cannot be adequately handled, let alone be meaningfully understood, by a person in ill health. It is unfortunate that Slobodan Milosevic-- whose health concerns similarly reduce his capacity properly to analyse and challenge the voluminous record generated so far-- has not been treated with the same deference accorded to Richard May. Much has been made in the mainstream press about President Milosevic's illness "wasting the court's time", yet Richard May's undisclosed health problems are not treated with contempt, but rather with compassion and concern. Slobodan Milosevic cannot resign from the ICTY for health reasons, and on the contrary, he has confronted this process while struggling against a life-threatening illness, despite being denied provisional release or specialized medical care to treat his condition.
Q: In recent days, the international press reported that the genocide charge has not been proven.
Dickson: The press' assessment of the quality of evidence presented so far is accurate to the extent that the evidence presented by the ICTY prosecutor has been anemic, rife with hearsay, opinion, speculation and irrelevancies. It is evident that counts should be dismissed, and in my opinion, the prosecutor has not succeeded in presenting a coherent or compelling case, in accordance with the standards of criminal justice.
Q: Some media went even further, saying that even evidence of war crimes in Bosnia and Croatia seems to be very shaky. If so, the remaining part would be the Kosovo indictment. Is that a way for the press to prepare the public for some charges being dropped or might there be something else behind this? For Mr. Milosevic it would not make any difference whether he gets one or five life sentences. But for the Western governments it would make a difference whether Milosevic's defense case covers all three indictments or is reduced to just Kosovo. If reduced to Kosovo, would Mr. Milosevic still be able to tell the whole story that there was a plan to destroy Yugoslavia-something to qualify the 'plan' not from his side but from the West, from Croatia and Bosnia? Or could we consider it an attempt to destroy a successful defense case?
Dickson: If the Chamber were to dismiss both the Bosnia and Croatia indictments, it would still be possible for SM to present his defense as announced in his opening statement. Kosovo was the West's-- NATO, the EU, US and other powers-- pretext for a gruesome 78-day bombing campaign, executed in violation of international law, using weapons, targets, and tactics which violate the laws and customs of war. This aggression marked the culmination of the decade-long effort to dismember Yugoslavia. As such, and in particular given the fact that the Kosovo indictment was served in the course of the bombing, to neutralize the Yugoslav leadership's potential to negotiate peace-- which had always been successfully achieved by President Milosevic in the past-- it is open to him to contextualize this indictment
It is highly likely that Mr. Milosevic will present the defense he has planned and will demonstrate that there was only one war: the war against Yugoslavia. In any event, the Prosecutor has chosen to allege, in the Kosovo indictment, that Slobodan Milosevic was the principal interlocutor for the "international community" since 1989, and "was the primary representative of the SFRY and FRY: The Hague Conference in 1991; the Paris negotiations of March 1993; the International Conference on the Former Yugoslavia in January 1993; the Vance-Owen peace plan negotiations between January and May 1993; the Geneva peace talks in the summer of 1993; the Contact Group meeting in June 1994; the negotiations for a cease fire in Bosnia and Herzegovina, 9-14 September 1995; the negotiations to end the bombing by the North Atlantic Treaty Organization (NATO) in Bosnia and Herzegovina, 14-20 September 1995; and the Dayton peace negotiations in November 1995."
The Prosecutor made the decision to stipulate President Milosevic's primary role in these largely successful peace negotiations in order to establish, astonishingly, his responsibility for the commission of crimes, rather than for having negotiated peace. Slobodan Milosevic is therefore entitled to explore all issues relevant to these conferences and negotiations, including the underlying conflicts that led to them. In doing this, he will have the opportunity to identify the foreign interests which were responsible for the dismemberment of Yugoslavia, from the first unconstitutional secessions to the illegal bombing of Yugoslavia.
Q: How will the trial continue?
The rules of procedure provide that a new judge cannot be assigned to a trial-- and in this case, evidence has been heard for two years-- unless the accused consents to such a measure. However, the judges may disregard the accused's objection if the "interests of justice" so dictate. The accused's consent appears illusory if the Chamber is entitled to ignore it, even if they do so "in the interests of justice". If the remaining judges choose to assign a new judge despite Mr. Milosevic's objections-- which is very likely, as the President of the ICTY, Theodor Meron, has essentially prejudged the issue in his press release announcing Richard May's resignation, by stating that he is "confident that Judge May's resignation will not have an unduly disruptive effect on any proceedings before the Tribunal"-- President Milosevic is nonetheless entitled to appeal their decision. Furthermore, any new judge assigned must certify that he or she is familiar with the record before sitting on the case. The evidence presented so far has generated over 33,000 pages of transcripts, not to mention tapes, both audio and video, maps, and a variety of other exhibits. It would not be decent to suggest that one could skim through-- let alone "familiarize"-- oneself with such a voluminous record, in such an important trial, in less than a year.
It is important to point out that courts of appeal rarely overturn trial judgments with respect to credibility. This is because trial judges are deemed to have had a unique opportunity to assess the witness' demeanor in a courtroom. In this case, over 200 witnesses have testified so far, and matters of credibility have been of crucial importance. How could a new judge appreciate the eloquent body language of witnesses such as Rade Markovic or Captain Dragan Vasilikovic without having seen them? It would be necessary for any new judge, in addition to reading--and understanding-- the record in its entirety, to carefully watch the video footage from the beginning of the process. This requires at least one year's time.
Although it appears that the ICTY will push to continue the matter despite Richard May's resignation, it is important to note that in common law proceedings, this situation would normally constitute a mistrial, and require that proceedings start anew. Unfortunately, the political pressure is such that on this issue-- like so many others-- the rights of the defendant will likely take a back seat to political expedience. The ICTY judges could even modify the rules in order to facilitate the continuation of the process, as they have now amended their rules 28 times in a little over a decade. Such a development would be an unfortunate precedent for the future of international law.
Thank you, Maitre Dickson, for answering those questions.
Interviewer: Cathrin Schütz
A shortened version of this interview was published in the German daily: Junge Welt, February 25, 2004
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