Lessons from the Milosevic trial

The Milosevic case was used as both an example and an illustration of what not to do during the Iraqi judges' preparation. A major departure from the Milosevic trial is that Saddam is being tried on individual and specific charges rather than a broad case of crimes against humanity. This is a big lesson to draw. Schraf explains that in the Iraqi court each case stands on its own, at the end of which, there will be a judgment. The judgments of these mini- trials constitute “snapshots of evil”.

According to the daily Le Monde, the high court in Baghdad announced on April 4 that after the initial trial, a more significant trial would be held in which Saddam Hussein and six other defendants would be tried for crimes committed during the 1987 and 1988 anti-Kurd campaign in Al-Anfal, resulting in 100,000 to 200,000 victims. In this case, Saddam is indicted along with Ali Hassan Al-Majid, (known as "Chemical Ali"), on charges of genocide and crimes against humanity, for the destruction of thousands of villages, the displacement of their residents and the gassing of the village of Halabja in March 1988, which resulted in 8,000 victims.

The hearing of these “snapshot of evil” indictments could last for years as new charges, including genocide are laid. The Iraqi authorities are keen for closure following former Yugoslav president Slobodan Milosevic's death before he faced a verdict on war crimes and also conscious not to “bite off more than they can chew”.

Attempting to try the ousted leader for genocide against Kurds will almost certainly mean that these criminal matters will take years to resolve. However, by drafting a series of disciplined indictments that focus on specific events the trials are self-contained.

Some observers have cautioned against haste. The former chief of the Iraqi Crimes against Humanity Unit, Tom Parker, says that in the context of Iraq it is more important for due process to be seen to be done than it is for a speedy trial. Parker favours procedural fairness over timeliness, on the basis that Saddam’s trial should constitute “an important building block in the construction of a credible Iraqi judicial system”. He added that, “a rushed trial could signal nothing had changed and justice in Iraq was still biddable to political expediency”.

Also speaking of the Iraqi court, Theodor Meron said it would have to guarantee the rights of its famous defendant to appear credible to the public, stating, “Any court dealing with atrocities has to pay particular respect to due process. There can be no cutting corners.”

It is a universal principle that any criminal jurisdiction, be it national or international, must extend to an accused person a system of justice that is both regular and fair. While not for a moment suggesting that there should be any diminution of the rights afforded the accused in major trials of this nature, it is important that the prosecutors do not hoist themselves on their own petard.

A trial of an individual cannot at the same time attempt to satisfy other external agenda, for instance, attempting to be a national catharsis, a medium for national healing, a comprehensive history lesson and a panacea for a failed justice system.

Unnecessarily broadening the trial objectives beyond the displacement of the burden of proof by the satisfaction of requisite elements sets the bar for the prosecution at an impossibly high level, thereby playing into the hands of former dictators, who are masters at manipulation and astutely aware of the theatrical effect of behaving badly.

If the prosecution stakes out the righteous high ground, then the defence will inevitably seek to show that the prosecutor represents an interested party rather than a mere officer of the court. The contest is then about personalities, as opposed to the merits of the matter. If the trial simply deals with the merits in a value neutral manner, then it will avoid the trial becoming a showdown between morality versus hypocrisy.

Some commentators have suggested that one of the greatest obstacles for prosecutors in the trials of former dictators is the sheer force of their personality on trial. Milosevic, for instance, acted in his own defence, with a staff of Serbian lawyers and researchers collecting material and conducting investigations on his behalf. He also had two court-appointed attorneys who intervened in procedural matters. This permitted him to have counsel, but also be disruptive himself.

Many critics and courtroom observers say Milosevic was the main reason his trial lasted so long. Early in the trial Milosevic was known for courtroom speeches and temperamental outbursts, following every nuance of exchange and frequently interjecting complaints or questions, even correcting courtroom interpreters. Milosevic disparaged the tribunal in court, threatened and insulted witnesses and tried to make the trial about the US and British military action against Serbia.