“This case will certainly test the criminal justice process itself and will challenge the very capacity of a modern criminal court to address crimes which must extend so far in time and place.”
Prosecutor Carla Del Ponte in her opening remarks in the trial of Slobodan Milošević
The trial against former Yugoslav President Slobodan Milošević was unprecedented: he was the first former head of state to stand trial before an international tribunal for war crimes. Never before had an international tribunal faced the challenges of trying a state leader for crimes spanning three countries and a period of almost ten years.
The Tribunal made history when it issued the indictment against Slobodan Milošević on 24 May 1999 for crimes committed in Kosovo, becoming the first international tribunal to charge a sitting head of state. After he was transferred to the Tribunal’s custody on 29 June 2001, the Tribunal confirmed two additional indictments against him: on 8 October 2001, Slobodan Milošević was charged with crimes in Croatia, and on 22 November 2001, he was indicted for crimes in Bosnia and Herzegovina.
Even before it began, the trial presented the Tribunal with a number of procedural challenges. The first was Slobodan Milošević’s decision to represent himself—a right provided for in the Tribunal’s Statute (Article 21(d))—which he conveyed to the Trial Chamber during his initial appearance on 3 July 2001. In order to assist the court, on 30 August 2001, the Trial Chamber assigned counsel to act as amicus curiae (friend of the court). In the course of the trial, the following served as amici curiae: Michail Wladimiroff (Netherlands), Branislav Tapušković (Serbia), Steven Kay (United Kingdom), and Timothy McCormack (Australia).
The second major procedural question that the Trial Chamber faced was whether to try Slobodan Milošević for crimes committed in Croatia, Bosnia and Herzegovina and Kosovo in a single trial, or in separate trials. The prosecutor argued that they should be tried together because the purpose and methods of the crimes that formed the joint criminal enterprise with which Slobodan Milošević was charged in each indictment were identical. The prosecutor also argued that holding one trial instead of three would be more efficient and economical (read the Prosecutor's Motion for Joinder). Although the Trial Chamber ruled that only Croatia and Bosnia and Herzegovina should be tried together (read the Trial Chamber's Decision on Joinder), the Appeals Chamber reversed this decision and ordered all three indictments to be tried in one case, with the Kosovo case starting first (read the Appeals Chamber's Decision on Joinder).
The trial against Slobodan Milošević commenced on 12 February 2002 when the Prosecutor, Carla Del Ponte, made her opening statement before the Trial Chamber, composed of Judges Richard May (presiding), Patrick Robinson and O-Gon Kwon.
Presenting evidence of such a vast number and array of crimes, faithfully representing the many hundreds of thousands of victims who suffered them, while at the same time respecting the accused's right to an expeditious trial and a defence of his choosing, would prove to be one of the biggest challenges faced by the Trial Chamber. Time and again, the Prosecution, Defence and Trial Chamber would discuss time—how much the Prosecution and Defence needed, and the Trial Chamber's meticulous accounting of how much each got.
One innovative solution that the Prosecution adopted was to present victim testimonies in written form (see Rule 92bis of the Rules of Procedure and Evidence). Instead of the Prosecution asking the victim to provide testimony in open court, prosecutors would read a summary of the victim's statement given to them, and then hand the witness over to the defence for cross-examination.
From the very start of the trial, Slobodan Milošević’s health was an issue which the Trial Chamber had to consider: by September 2003 more than 50 trial days had been cancelled due to his ill health, and by the end of the trial, the total would come to 76 lost court days. Accepting the recommendations made in a cardiologist’s report on Milošević’s state of health, the Trial Chamber ruled that it would sit only three days a week, thus providing Milošević with four days of rest. The lost court days, coupled with a three-day week considerably prolonged the trial’s duration.
Despite these measures, Slobodan Milošević’s health continued to have an impact on the conduct of the trial. The beginning of Milošević’s defence case had to be postponed on several occasions, finally starting on 31 August 2004—six months after the Prosecution completed its case-in-chief. Again citing medical reports from two cardiologists, the Trial Chamber decided that Milošević was not medically fit to conduct his own defence and ordered the Registrar to appoint defense counsel, decisions Milošević successfully appealed. The Appeals Chamber decided Milošević need only be represented by counsel when medically unfit to defend himself. In practice this meant his counsel, who had been appointed by the Registrar to represent Milošević, were put on “stand-by” to take over the case if a medical necessity made it impossible for Milošević to continue.
These measures continued in place throughout the defence phase, with Slobodan Milošević conducting his defence case almost entirely without the stand-by counsel having to be used, despite the fact that proceedings were halted or delayed on a number of occasions due to his health problems. In fact, on one of the occasions when Milošević was unable to attend the hearing because of ill health, the scheduled defence witness, Kosta Bulatović, refused to answer questions in cross-examination until the accused returned, thereby implicitly refusing to recognize Milošević’s counsel. The Tribunal later convicted Bulatović of contempt of court.
Just before the prosecution rested its case, Presiding Judge Richard May was forced to withdraw for medical reasons. Judge Patrick Robinson was made the presiding judge and on 1 June 2004, Judge Iain Bonomy joined the Trial Chamber.
After the prosecution closed its case on 25 February 2004, the amici curiae filed a motion on behalf of the accused to acquit him, arguing that the evidence the prosecution submitted in and of itself was insufficient to support a conviction (see rule 98bis of the Tribunal's Rules of Procedure and Evidence). The Trial Chamber ruled on 16 June 2004 that the prosecution had provided evidence that could be sufficient to convict Slobodan Milošević, in the absence of a defence case, of each of the 66 counts with which he was charged. The Trial Chamber noted that its decision did not mean that it should convict Milošević, nor that it would convict him. However, the Trial Chamber found that the prosecution had not submitted enough evidence to prove beyond a reasonable doubt allegations relating to some crime scenes within several of these counts (see the Trial Chamber's 98bis Decision). Slobodan Milošević, therefore, began his defence case on 31 August 2004.
On 11 March 2006, with only a few weeks left to finish his defence, Milošević was found dead in his cell in the United Nations Detention Unit. Autopsy reports carried out by the Dutch forensic institute and the Tribunal’s own inquiry (see “Report to the President, Death of Slobodan Milošević”) led by Tribunal Vice-President, Judge Kevin Parker, concluded that Milošević died of natural causes.
The judges formally closed Slobodan Milošević’s trial on 14 March 2006. During the 170 court days, spread over a period of four years, the court heard 347 witnesses and admitted about 1000 exhibits, some containing over 100 documents. The trial provided many victims with a forum in which to tell their painful stories. A number of high-level leaders from the former Yugoslavia and representatives of the international community spoke for the first time about significant events during the wars of the 1990s. Finally, many documents, videos and intercepted telephone conversations were first seen in the Tribunal’s court room during the Milošević trial. These materials form part of the public record and remain available to investigators and prosecutors in the region for future war crimes cases, and to historians, researchers, and members of civil society in their efforts to establish the truth of what happened during the wars in the former Yugoslavia in the 1990s.
In a press release following Slobodan Milošević’s death, Prosecutor Carla Del Ponte, whilst regretting that this case would now not face judgement, stated that the crimes for which Milošević was tried could not go unpunished—other high level leaders, both in the Tribunal’s custody and still at-large, stood indicted for the same crimes and they must be brought to justice.