Lessons from the Milosevic trial

He logged a succession of sick days on doctors' recommendation, resulting in the court sessions being reduced to three days a week to reduce his stress and hypertension.

The lessons of Milosevic's prolonged trial were uppermost in the minds of those establishing the criminal tribunal for Iraq, now underway in Baghdad. Methods for keeping the trial short, fair and under control were the primary concerns.

Keeping order in these politically charged cases have proved a big issue. In an effort to circumvent this problem of self-representation, last August the Iraqi National Assembly enacted revised rules for the tribunal. Under the rules, Saddam had to be represented by legal counsel, in order to prevent him from using the court as a political forum to attack the US and the new Iraqi Government.

In keeping with Iraqi legal tradition, however, the judges have allowed Saddam to question witnesses. This has given Saddam a platform to disparage and prevaricate. So far, according to observers, the trial of Saddam Hussein has been characterised by chaos, with the bench often struggling to maintain order. The defence lawyers walked out, prompting their dismissal and an order by the court to continue the trial with court-appointed public defenders. In protest, Saddam and his co-defendants have refused to return to court, thereby requiring the court to make a case to the public, clearly explaining the ruling.

From the initial proceedings it is evident that the Iraqi tribunal will have teething issues, but whether any lessons have been learned from The Hague experience remains to be seen.

Undoubtedly, the trials of leaders such as Slobodan Milosevic and Saddam Hussein will be followed shortly by the trial of other similarly situated deposed leaders. This week the UN Security Council may ask the Netherlands to host the special court for Sierra Leone, established four years ago in Freetown, so that it can try its most important defendant, former Liberian president Charles Taylor, who was incarcerated on March 29. In this case it would appear that the relocation of Taylor to The Hague is a prosecutorial strategy aimed at security and to avoid the pitfalls of in situ prosecution.

Similarly, the lessons learned from the trial of Milosevic have application elsewhere. For instance, if the international community is to avoid the same outcome in Cambodia as the Milosevic trial, it will need to ensure the prompt establishment of a trial chamber to begin hearing matters as a matter of priority. Presently the Cambodian Government is delaying setting up the extraordinary chambers to try ex-Khmer Rouge leaders, adopting a strategy that increases the likelihood of these leaders dying before they come to trial.

It is imperative that we learn the lessons. Trying former world leaders is always going to test any criminal system, but the Milosevic precedent tells us that the prosecution can get smarter and more efficient about how they conduct proceedings, primarily by simplifying their prosecutorial strategy. Ambitious drafting is counter-productive and zealous posturing with respect to what these trials will achieve on a grand scale, will be met predictably by distain and counterclaim from the defence.

If we have learned anything from Milosevic’s trial it is “keep it simple” and “keep it free from posturing” by both parties to the proceedings. This way the international criminal process can ensure the pronouncement of timely and disinterested judgment from legal institutions which are, to the extent possible, freed from their political context.