The Milosevic Lessons: Faster and More Efficient Trials

By MARLISE SIMONS
THE HAGUE — The trial of Slobodan Milosevic generated about 120 DVD's, 46,000 pages of transcripts and more than 300,000 pages of oral and written evidence. The number of documents had reached 1.2 million pages, and more were on the way.

All that work stopped in its tracks. On March 13, two days after Mr. Milosevic's death, the international war crimes tribunal for the former Yugoslavia ended the case here, leaving lawyers and court officials, witnesses and victims abruptly bereft.

So, has the first international criminal trial of a head of state bequeathed more than immense frustration? Yes, even if accidentally.

The prosecution set out to tell the detailed history of three Yugoslav wars of the 1990's because it saw this as the only way to uncover Mr. Milosevic's often hidden hand in them.

Still, prosecutors are not historians; their focus is on establishing proof.

"Proof will include truth, but it will not present the full picture," Geoffrey Nice, the lead prosecutor, once said. "We have a limitless field of evidence from the wars, but we are not inquiring like scientists; we are asked to extract from it."

With Mr. Milosevic's death of a heart attack in his jail cell, no judges will weigh this evidence. So what remains is not a verdict, but the prosecution's account — that the former Serb leader was almost the sole driving force behind the three wars.

The court did not indict his wartime counterparts. Franjo Tudjman, the president of Croatia, was under investigation but died in 1999. The court never focused on the role of the Bosnian leader Alija Izetbegovic.

Other trials are dealing with senior Muslims and Croats, aiming to provide a balanced view of the wars that accompanied the breakup of Yugoslavia.

Mr. Milosevic devoted almost his entire defense to charges related to the 1999 war in Kosovo. Because both sides had a say, a tested version of that history exists, and it may influence future cases.

Even without a verdict, the Milosevic case will help shape a collective memory of the Balkan tragedy, and the trial created building blocks and procedural lessons for future trials. Not least, it established the precedent, long unthinkable, of having a former head of state face a criminal trial before an international court.

Even some of the evidence presented in the Milosevic trial may have a further life.

At the trial's great predecessor, the Nuremberg trials of Nazi leaders, the occupying Allied troops had an immense paper trail of signed orders. But Mr. Milosevic wrote very little, so over the four-year trial, prosecutors painstakingly reconstructed events, drawing on testimony of witnesses and insiders, as well as affidavits, letters and transcripts of phone taps and radio intercepts.

All that has been incorporated into a vast database, where evidence may be retrieved for other trials. It may be opened to scholars, researchers and journalists.

Eligible topics could include the role of Serbia's special forces, their links to the paramilitary, Mr. Milosevic's use of secret parallel commands, and Belgrade's payment of equipment, salaries and pensions to its proxy army in Bosnia.

The Milosevic trial offers important lessons, which are now being debated. The court has understood that its strategy of trying Mr. Milosevic for his whole "criminal enterprise" created an overly cumbersome case, signaling the pitfalls for future high-profile trials.

It has not gone unnoticed here that in the trial of Saddam Hussein, the prosecution has focused narrowly on one infamous case of brutality to which he is linked as an active participant.

But unlike Mr. Hussein, Mr. Milosevic was always far from the scene of action. He was accused of command responsibility, in planning and ordering the crimes of others.

The way the prosecution made its case required charting the full political and military structure of Yugoslavia and its dissolution. One lawyer said there was no simple event, standing alone, that could be sliced off and pinned on Mr. Milosevic.

Moreover, he argued, the point of the process was not just to seek retribution but to help shape the history of the war, to spur Serbs to end their denial of atrocities and reconnect Serbian society to the rest of Europe.

Lawyers will be debating for a long time whether this can or should be the role of a criminal trial. Much fingerpointing has occurred over the trial's inefficient and slow pace.

Judges tried several times to break the prosecution's vast indictment into more manageable portions. Doctors imposed a part-time schedule because of Mr. Milosevic's poor health.

Prosecutors complained that the judges' decision to let Mr. Milosevic act as his own lawyer not only slowed the trial every time he was sick but also allowed him to filibuster and to use the court as a political stage.

Other international tribunals have already drawn their conclusions, and as this court deals with the rest of its caseload it will be harder for any accused to obtain the right to defend himself, and nearly impossible for someone who is sick or unruly.

Court officials also emphasized privately that international tribunals handling complex war crimes cases need the most experienced judges.

Several judges who retired after serving in The Hague have said they deplored working beside inexperienced judges who came from diplomatic, academic or political posts. Patrick Robinson, who presided over the second half of the Milosevic trial, had a long diplomatic career but almost no trial experience.

There is intense internal debate over whether complex war crimes trials are best served by the adversarial system with its many witnesses and courtroom drama, or by more of a civil law system with its more active role for the judges and far more written evidence.

Steven Kay, a British court-appointed lawyer for Mr. Milosevic, said the adversarial system "utterly fails to deal with trials of the Milosevic type."

Written evidence has already become more acceptable at the tribunal, and other rules have been changed to streamline procedures.

But future shifts do not alter the plight of the Milosevic prosecutors, who wrote a sweeping historical indictment and ended up, not with a verdict and a sentence, but mostly with food for historians.