The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings

by Gideon Boas

• ISBN13: 9780521700399
• ISBN10: 0521700396
• Edition: 1st
• Format: Paperback
• Copyright: 2007-09-24
• Publisher: Cambridge University Press

Summary

When Slobodan Milošević died in the United Nations Detention Unit in The Hague over four years after his trial had begun, many feared - and some hoped - that international criminal justice was experiencing some sort of death itself. Yet the Milošević case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stands for much in the development and the future of international criminal justice, both politically and legally. This book, written by the senior legal advisor working for the Trial Chamber, analyses the trial to determine what lessons can be learnt that will improve the fair and expeditious conduct of complex international criminal proceedings brought against former heads of state and senior political and military officials, and develops reforms for the future achievement of best practice in international criminal law.

Author Biography

Gideon Boas is a Senior Lecturer at Monash University Law Faculty.

Table of Contents

Foreword	p. xii
Preface	p. xvii
Introduction	p. 1
The purpose and content of this book	p. 2
The structure of this book	p. 5
The context of this book	p. 9
Fair and Expeditious International Criminal Trials	p. 13
Introduction	p. 13
Fair-trial rights	p. 15
Requirement that the proceedings be public	p. 21
Adequate time and facilities to prepare a defence	p. 27
Trial without undue delay	p. 29
Equality of arms	p. 32
The right to confront witnesses	p. 43
Written evidence in lieu of oral testimony	p. 47
Admission of adjudicated facts	p. 50
The right to counsel and to self-representation	p. 53
Defence counsel representation in international criminal courts and tribunals	p. 55
Self-representation	p. 57
Standby counsel	p. 61
Imposition of counsel	p. 63
Expeditious trials	p. 63
Application and interpretation of human rights by the ICTY	p. 69
The Milosevic Prosecution Case - Getting Off on the Wrong Foot	p. 79
Content and scope of the Milosevic indictments	p. 80
The Kosovo indictment	p. 81
The prosecution case concerning Kosovo	p. 81
The Croatia and Bosnia indictments	p. 83
The prosecution case concerning Croatia and Bosnia	p. 84
The context in which the crimes were committed	p. 84
Executing the plan	p. 86
The scope of the charges	p. 88
Milosevic's role and responsibility	p. 88
The prosecution case on 'Greater Serbia'	p. 90
Pleading practice and problems with the Milosevic indictments	p. 92
The form of the indictment	p. 93
Review of indictments	p. 95
Analysis of the Milosevic indictments	p. 96
The Kosovo indictment	p. 96
The first Lazarevic Decision on the form of the indictment	p. 97
Defects in the form of the Milosevic Kosovo indictment	p. 104
Defects in the form of the Croatia and Bosnia indictments	p. 107
Conclusion on the defects in the three indictments	p. 108
Joinder of the Milosevic indictments	p. 115
Joinder application before the Trial Chamber	p. 115
Joinder application on Appeal	p. 118
Rule 98bis (judgement of acquittal) decision	p. 121
Did Milosevic intend to commit genocide?	p. 123
Dismissal of numerous allegations in Croatia and Bosnia indictments	p. 126
Conclusion	p. 127
Conclusion	p. 128
Case Management Challenges in the Milosevic Trial	p. 131
Managing the Milosevic case	p. 133
The prosecution case	p. 133
Scope of the prosecution case	p. 133
Trial Chamber's management of the prosecution case	p. 142
The defence case	p. 153
Conduct of the defence case	p. 153
Trial Chamber's management of the defence case	p. 155
Consideration by the Trial Chamber of more radical case management approaches	p. 163
Severance of one or more indictments	p. 163
Case management principles in national and international criminal law	p. 170
Case management in common law systems	p. 171
Caseflow management or differential case management	p. 172
Individual case management	p. 174
The willingness and capacity of judges to manage cases	p. 176
Case management in civil law systems	p. 178
Germany	p. 179
Belgium	p. 180
France	p. 181
Case management in international criminal law	p. 181
The framework for best case management practice in international criminal law	p. 182
Case management at the ICTY	p. 188
Case management regulations at the ICTY	p. 189
Learning from the Milosevic case	p. 193
The Oric case	p. 194
The Prlic case	p. 195
The Milutinovic et al. case	p. 197
Conclusion	p. 199
Representation and Resource Issues in International Criminal Law	p. 205
Self-representation in international criminal law - limitations and qualifications on that right	p. 206
The Milosevic Decisions - defining the limits of the right to self-representation	p. 208
Early history	p. 208
Milosevic - First Reasoned Decision of 4 April 2003	p. 209
Removing the right to self-representation	p. 211
Health of the Accused	p. 211
Second Reasoned Decision of 22 September 2004	p. 213
Appeals Chamber Decision of 1 November 2004	p. 218
Self-representation issues arising in other international criminal courts and tribunals	p. 222
The Special Court for Sierra Leone	p. 222
The Norman Decision	p. 222
The Gbao Decision	p. 224
The ICTR	p. 226
The Barayagwiza Decision	p. 226
The Ntahobali Decision	p. 227
The ICTY	p. 228
The First Seselj Decision	p. 228
The Second Seselj Decision	p. 230
The First Appeals Chamber Seselj Decision	p. 232
The Second Appeals Chamber Seselj Decision	p. 233
Self-representation in the Krajisnik case	p. 236
The Supreme Iraqi Criminal Tribunal (SICT)	p. 238
Practical difficulties of imposing counsel on uncooperative accused	p. 239
Resources and facilities available to Milosevic	p. 245
The use of amid curiae in international criminal law	p. 246
The role of amicus curiae in international criminal law	p. 246
Definition	p. 246
Amicus curiae in the ICTY and ICTR	p. 246
Amicus curiae in the Special Court for Sierra Leone	p. 249
Amicus curiae in the International Criminal Court	p. 250
Conclusion	p. 251
Role of amici curiae in the Milosevic case	p. 251
Actual assistance provided to the accused by the amici curiae	p. 254
The future for the innovative use of amicus curiae in complex international criminal trials	p. 256
The provision of 'legal associates' in the Milosevic trial	p. 258
Resource issues in international criminal trials - Milosevic and other senior-level accused	p. 260
Concluding comments on resource issues and the equality of arms	p. 263
Conclusion	p. 265
Conclusions	p. 271
The prosecution case must be focused, comprehensible and manageable	p. 275
The future of case management in complex international criminal law cases	p. 279
Managing resource and representation issues in complex international criminal law cases	p. 284
The outdated common law/civil law divide: time for international criminal law to evolve	p. 286
The need to consider a new appellate jurisdiction for international criminal law	p. 288
After Milosevic: the future of complex international criminal trials	p. 291
Index	p. 294
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