Worst outcome for Milosevic tribunal

By Jon Silverman
Legal affairs analyst

Four years on, a verdict in the case is now impossible

It has been a black week for the UN tribunal authorities in the Hague.

On 5 March, the Serb nationalist war criminal, Milan Babic, was found dead in his prison cell. He is presumed to have committed suicide.

Now, the man against whom Babic testified in 2002, Slobodan Milosevic, is himself dead.

It raises questions which may tarnish the reputation of the International Criminal Tribunal for Yugoslavia (ICTY) and undermine confidence in war crimes justice generally.

First, was it a mistake to roll all the charges relating to Kosovo, Bosnia and Croatia - more than 60 in all - into a single trial?

Milosevic died just days after Milan Babic was found dead in his cell

It is sometimes forgotten that in 2001, the lower chamber of the tribunal ruled that the Kosovo indictment merited a separate trial because the allegations were sufficiently distinct from events earlier in the 1990s in Croatia and Bosnia.

But the decision was overturned following a prosecution appeal.

As late as December 2005, the issue of severing the Kosovo indictment from the rest of the charges was dealt with again. The judges deciding against doing so because they felt it would merely be an invitation to Mr Milosevic to seek additional time and further delay proceedings.

In the light of his death, the tribunal has got the worst of all possible outcomes - no verdict on any of the indictments.

Legacy diminished

The death of Mr Milosevic will place a spotlight on his legal adversary, the chief war crimes prosecutor, Carla del Ponte. It was largely her decision to charge the former president with genocide in relation to Bosnia.

Carla Del Ponte had said the Milosevic trial was nearing the end

Some believed that was a political step to enhance the credibility of the tribunal at a time when its performance was being questioned.

We shall never know whether the genocide charge would have been proved and, in the absence of Mr Milosevic, it now becomes even more crucial for the tribunal to place fugitive war crimes suspects Radovan Karadzic and Ratko Mladic on trial.

It has been said that the two ad hoc tribunals set up by the UN Security Council to deal with crimes in former Yugoslavia and Rwanda are a "laboratory" for the permanent International Criminal Court which has yet to hold its first trial.

Certainly, the mistakes made by the two tribunals will have been noted - principally, the failure in their early phases, to provide an outreach programme to ensure that people in the Serb Republic and Rwanda felt an active engagement with the evidence unfolding in courts many hundreds of miles away.

The impetus to strive for justice for the victims of war crimes will continue. But the death of Mr Milosevic - the first head of state to be indicted for crimes against humanity - will diminish the legacy of the most important court to be established in Europe since the end of World War II.