A judgment on Judgment: Milošević On Trial Jon Kear I



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A Judgment on Judgment: Milošević On Trial

Jon Kear


I

Michael Christoffersen’s award winning film Milošević On Trial (2007), documents the prosecution of Slobodan Milošević at the International court at the Hague for war crimes committed in the course of the conflicts in Bosnia, Croatia, and Kosovo.1 The most high profile case of its kind since Nuremberg, the trial marked a critical moment in the history of international justice.2 The charges brought against Milošević, relating to the period of his Presidency of Serbia (1989) and later of Yugoslavia (1997), consisted of three separate indictments conjoined for the purposes of the trial. The charges included: “crimes against humanity involving persecutions on political, racial or religious grounds; extermination; murder; imprisonment; torture; deportation; and inhumane acts (forcible transfers),” grave breaches of the Geneva Conventions of 1949 and the laws and customs of war, including the killing of unarmed civilians, and “genocide and complicity in genocide” (Scharf and Schabas 2002: 56-73, Laughland 2007: 12-15). As Milošević refused to acknowledge the authority of the court, the court filed a plea of not guilty to all sixty-six charges on his behalf.

Unsurprisingly, given the long list of indictments, Milošević’s trial became the longest running in the history of international justice, lasting over four years and ending inconclusively, not with judgment and justice, but with Milošević’s death from cardiac arrest shortly before the prosecution had entered its final stages. Its real significance, however, was that for the first time a sitting elected head of state was indicted to appear before an international court.3 The case thus signaled a change in the scope and application of international justice: international law would no longer be founded on the principle of state sovereignty as it previously had been. Milošević’s prosecution therefore provided a high-profile test case of the expansion of international law to armed conflicts anywhere. In her opening statements, featured in the film, Chief Prosecutor Carla Del Ponte remarked: “This tribunal, and this trial in particular, give the most powerful demonstration that no one is above the law or beyond the reach of international justice” (Christoffersen 2007). The case was to bring the ICTY to the forefront of attention of the world’s media, aided by a lurid public relations campaign by the prosecuting magistrate Carla del Ponte.

Given the length and intricacy of the proceedings Milošević on Trial has become an important historical document of the trial and the judicial process of trying international war crimes. Released to coincide with the fifth anniversary of the trial’s commencement, the film draws on the trial’s immense archive of documentation, including transcripts and over two thousand hours of audio and video recordings of every witness who appeared before the court. But the film is based not only on archival tape recordings of the court proceedings but an additional two hundred and fifty hours of interviews with those involved in the case, including the leading prosecutor in the trial, Sir Geoffrey Nice, and Milošević’s legal advisor, Dragoslav Ognjanovic. The extensive behind-the-scenes footage also includes meetings of lawyers, forensic investigations at massacre sites, media press conferences, as well as contextual footage dealing with contemporary political events in Serbia, where Milošević retained broad political support. Together this footage provides an account both of the public and private face of the trial, documenting not only the trial itself but its convoluted judicial process.

But what kind of record does the film provide of the trial and the events that led to it and what questions does it pose for both the understanding of international justice and the way war crimes trials are documented and re-presented? To what extent can a film adequately or even simply document a trial, particularly one as complex and significant as Milošević’s? The specific nature of the judicial system inevitably places particular restrictions on filmic representation, most immediately in terms of the compression of trial’s process. But the reduction of a trial lasting so many years and consisting of such extensive testimony to a mere seventy minutes necessarily raises questions of judgment about what is selected as representative of the trial, which in turn raises other questions of accuracy and perspective. To pose such issues about Christoffersen’s film is to ask a series of questions about the ethics and appropriateness of particular aesthetic strategies of representation, and the political and ideological purposes such films might serve. Such issues are made more weighty by the fact that Milošević on Trial constitutes not only one of the most immediately accessible forms in which the trial has been recorded and disseminated, but implicitly provides an assessment of the fairness of its due process and as such performs a critical role in its justification.4 We might see such trials and their subsequent representations, therefore, as necessarily involving acts of judgment upon them. As Chief Justice Jackson, in his opening speech at Nuremberg stated: “Courts try cases, but cases also try courts” (Jackson 1945: 290-94). The court’s act of judgment becomes multiplied here through the many representations that are made of the judicial process itself. There is on the one hand the judgment of the court attempting to set judicial precedents and establish laws of civil rights that would have international authority and application, and the judgment of the filmmaker in vigilantly observing the judicial process, examining the scope and terms on which its judgments are made.

The importance of such vigilance takes on special gravity given the nature of international justice, where national sovereignty becomes subject to universal claims of justice. Founded in 1945, the unique position of the International court of justice has made it a powerful instrument for advancing human rights, legislating in areas for which there had not been prior legislation. In doing so the scope and reach of the court has greatly expanded in the past few decades. However, the question of where its authority in practice derives from bears on the compass of the application of the principles of justice and what function it serves in the broader arena of international relations. Defenders of the international courts assert their impartiality and the protection they offer citizens from the violence of nation states (Hampson 1993: 10). However, the charge brought against the international courts by its critics is that in practice their scope and reach has been determined and constrained by political influences and pressures. The application of international justice, it has been argued, has become all too closely associated with the political objectives of NATO and American foreign policy. The contemporary practice of International jurisdiction therefore needs to be seen in the context of the contradiction between the desire to extend human rights beyond national boundaries and the annexing of international legal apparatuses to the new world order politics that emerged as a central plank of American foreign policy in the 1990s.5

Given the high stakes of International trials for them to carry any genuine legitimacy requires their due process itself is judged fair and impartial rather than reflecting the will of partisan, political interests. The need for proper scrutiny of such trials is made more urgent by the unique institutional arrangements of such courts and the lack of instruments for reviewing the fairness of their due process (Robinson 1996). 6 The flexible arrangements of the court permit it to set aside restrictions that bind other kinds of legal process, including allowing the prosecution of retrospective laws. The international courts set up by the United Nations (UN) and the permanent International Criminal Court (ICC) (established in 2002) are effectively not subject to any meaningful control (Laughland 2007: 5, 87-109). The UN neither critically analyses the workings of its international courts, nor is criticism from within its ranks welcomed. The flexibility of the court’s procedures as the author of its own rules of evidence and its amalgamation of elements of adversarial and inquisitorial forms of trial mean the odds are stacked against the defense. This situation is even more questionable in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY), whose continually fluctuating rules of procedure are decided by the judges themselves and subject to no exterior legal body. The ICTY had been brought into being by United Nations Security Council Resolution 827 on 25 May 1993 with the express intent of bringing prosecutions against those alleged responsible for war crimes. As the ICTY is essentially a prosecutorial organization, arguably an unacceptable closeness exists in the relationship between the office of the prosecution and the judges.

Consequently, as Geoffrey Nice has himself remarked, in such trials there is a vital need for meticulous, critical, even skeptical observation that weighs each piece of evidence and each principle on which judgments are made (Nice 2010: 25). Representations of such trials potentially serve as an extra-judicial method of critically judging their due process and fairness, providing a necessary form of monitoring, questioning and critical scrutiny that the court itself could not perform. Notwithstanding the initial sensationalism and newsworthiness of the Milošević trial, its protracted and intricate nature meant few international journalists followed the proceedings on a regular basis even in the regions where the alleged crimes were committed. The meticulous scrutiny of the trial Nice saw as integral to the process and legitimacy of international justice was neither met in the subsequent representations of the trial nor, I want to argue, in Christofferson’s film. Under the pretext of providing a balanced account of the proceedings, Milošević on Trial ends up covertly offering a particular narrative of the events associated with that which the ICTY sought to articulate through the trial. This narrative is relayed not only by what is shown and the mode in which it is framed and presented, but most crucially by what is excluded from the film’s account. The limits the film imposes on its presentation of the trial, both as a result of its aesthetic form and content, parallel the limits the trial judges imposed on what evidence could and could not be presented. Accordingly, instead of critically scrutinizing the trial in relation to its wider significance and political meanings, Christoffersen’s film might be regarded as an extension of the aims of the commission through filmic discourse. Far from simply documenting the case, the film delivers a judgment the trial itself could not reach.



II

Milošević on Trial is to all appearances a clinically objective account of the trial, stylistically conforming closely to standard formal conventions of objective documentary filmmaking. There is little narration, though occasional inter-titles provide dates and additional information to clarify the testimony and proceedings and the film advances in chronological order, juxtaposing testimony of the trial itself with footage showing the machinations behind the scenes. Generally assuming the conventional form of a fly on the wall documentary, the film entrenches its own naturalization, by concealing any awareness of the presence of the film crew even during the interviews, leaving the viewer to derive the questions asked from the answers given by the interviewees; the impression is one of letting the protagonists speak for themselves and the trial present itself. In this respect it differs markedly from other documentaries of international trials for war crimes. The proceedings at Nuremberg were the subject of many filmic representations, including two notable fictional ones. Documentaries of the events were commissioned by both the American and Soviet administrations and widely circulated. Despite differences in style and ideological content, both adopted a common approach to commentary, employing a narrator to guide the viewer and unequivocally consolidate the judgment of the court. The convergence of the film’s narration with the judgment at Nuremberg served a powerful, if overtly ideological role, not only in relaying the court’s judgment but also its authority and legitimacy, despite the recognition of the flaws inherent in its process. But how objective, balanced and neutral is Christoffersen’s film?

Though the exclusive footage behind the scenes encourages the viewer to regard the film as both about the trial and the legal process itself, Milošević on Trial remains resolutely focused on the adversarial features of the trial at the expense of a more probing investigation of the evidence of the trial and the broader workings of international justice. Consequently, despite its avoidance of any explicit narration, the film is organized around a central agonistic narrative. The film draws the viewer intently into the strategic maneuvers of either side as the trial progresses, dramatizing the trial’s progression. The prosecution team, led by Nice, and Milošević are portrayed as locked in a personal struggle for ascendance, each seeking to define the trial in contrasting fashion. But this agonistic narrative serves to impose a simplification of the trial and its due process. Milošević, a trained lawyer, had chosen to represent himself, conducting his own defense despite poor health, but his continued illness continually interrupted the trial’s progress. The delays caused by Milošević’s ill health are represented by the prosecution team, with no serious counter argument or counter evidence, as simply a delaying tactic, despite Milošević’s death shortly after having been denied the right to receive hospital treatment in Moscow. The decision taken to impose professional counsel on Milošević after his ill health threatened to delay the trial’s progress, a judgment reversed by the court’s own appeals chamber as an abnegation of Milošević’s legal rights, is presented as though Milošević had momentarily triumphed over the judges. Yet, legally this was a significant matter of due process in which the court had self-servingly revised ad hoc its own rules (Laughland 2007: 176-191). While concentrating on the delays caused by Milošević’s health, the film elides the fact that the prosecution continually broke the time limits the judges imposed and was itself a major reason for the protracted nature of the trial.

In undeviatingly accommodating itself to the trial’s adversarial form, Milošević on Trial tacitly articulates the intricate case the prosecution sought to build. The political sensitivity of the trial meant that from the outset the prosecution sought to establish a case not against the state apparatus of Serbia, but personally against Milošević. Carla del Ponte, in footage included in the film, opened the prosecution case by making clear that: “No state organization is on trial here today, the accused is brought before you to answer for his own actions and for his personal involvement in the crimes alleged against him” (Christoffersen 2007). Nice, in a passage also shown in the film, chose to portray Milošević as an opportunist, hungry for power, no matter what the consequence: “This trial is about the climb of this accused to power, power that was exercised without accountability, responsibility or morality” (Christoffersen 2007). This narrative focused on personal vilification sought to counter Milošević’s anticipated attempts to broaden the trial and make it an indictment against Serbia and its institutions. Yet, in resting the case on the individual actions of Milošević, the prosecution faced exceptional difficulties in articulating this case. There would be no paper trail linking Milošević directly to the atrocities perpetrated against Bosnian Muslims or Kosovo's Albanians and, as Nice argued, Milošević as head of state was “as remote from the criminal action as any defendant is ever likely to be” (Christoffersen 2007; Vulliamy 1 July 2001).

The film dwells at length on the difficulties and dilemmas faced by the prosecution, some of which were evidently self-inflicted. The large number of charges and the conflation of separately drawn up indictments relating to hostilities in Bosnia, Croatia and Kosovo brought against Milošević resulted in delay and an unwieldy and unduly protracted trial, with filings, exhibits and other submitted evidence comprising over 1.2 million pages (Laughland 2006). The prosecution sought to make the charges reflect the entire history of the wars of former Yugoslavia, but faced problems of limiting consideration of the effect of NATO’s involvement in the conflict (see Chandler in Hammond and Herman 2000: 19-30; Hayden 2000). The indictment of Milošević was hurriedly published on the 24th March 1999, two months after NATO had begun Operation Noble Anvil, its controversial bombing of Yugoslavia, that resulted in approximately the same number of deaths as the ICTY alleged Yugoslav forces were responsible for in Kosovo (Laughland 2007:10-15; Laughland 1999).

The prosecution’s pursuit of a case based on the doctrine of joint criminal enterprise, in which Milošević was held responsible for an alleged official policy of ethnic cleansing aimed at the creation of a centralized Greater Serbian state, meant it had set itself the daunting and, as it proved, elusive task of showing not only the existence of such a plan but Milošević’s command over all the relevant armed groups and police apparently involved in its execution, including those parts of the republic of former Yugoslavia for which he had no constitutional power. Accordingly, as the film documents, the prosecution case did not proceed smoothly. A large body of trial’s testimony consisted of hearsay evidence and submitted statements not subject to cross-examination, much of which was poorly translated and in a number of instances misleading (Laughland 2007: 152-7). The admission of evidence of this kind considerably compromised the prosecution’s case, though this remains unacknowledged in the film. Much weight was placed on statements of Dragan Vasiljković, a founder and captain of the Serbian paramilitary unit, the Knindže, and implicated in the abuse and torture of detainees, soldiers and civilians during 1991-92 in the Knin detention camp during the war with Croatia. In 1991 Vasiljković went to work for Milan Martić, a Serbian politician and former president of the republic of Serbian Krajina, who was also a senior rebel commander of Serbian forces in Croatia during the war of independence and later sentenced by the International Criminal Tribunal for the former Yugoslavia to 35 years in prison for his role in the forcible removal, deportation and killing of Croatians and non-Serbians in Krajina. Prosecutors claimed Vasiljković worked directly under Serbian police auspices, and produced a signed statement implicating Milošević in issuing orders directly to Milan Martić. But under cross-examination Vasiljković denied the paragraph in question was an accurate account of his written statement, insisting he was speaking exclusively of the Service of Krajina, the Police of Krajina or the Army of Krajina or the JNA until the Vance Plan. The prosecution had lost its most valuable evidence. Though in the film this is presented by the prosecution as a case of an unreliable witness (“the best piece of evidence” delivered by “the worst possible witness”), it implicitly points to the problems the prosecution faced in finding reliable witnesses and credible evidence to back their case and was not the only instance where court statements were disputed by prosecution witnesses (Christoffersen 2007).7

Despite this, the film studiously avoids pursuing questions of the caliber of evidence brought by the prosecution despite the fact that some of the testimony against Milošević was highly questionable and clearly motivated by political ends (Laughland 2007: 150-70). For example, the film features testimony by US ex-ambassador William Walker on the Racak massacre in which forty-five Kosovo Albanians appear to have been killed by Serbian forces. Walker was head of the Kosovo Verification Mission of The Organization for Security and Co-Operation in Europe (OSCE). Reports of the Racak massacre became a major feature of the publicity used to support NATO’s decision to use force against the Yugoslavian government, even though they and later investigations have offered confusing and contradictory accounts of the events. Walker’s testimony is allowed to stand unquestioned in the film, backed-up by footage of him on the ground inspecting the scene. Yet, Walker, US ambassador in El Salvador during the period in which death squads had carried out atrocities in the country and heavily involved in the ousting of General Noreiga in Panama and the Iran Contra scandal, was hardly an impartial observer. The Kosovan Verification Mission (KVM) was essentially staffed by intelligence officers, mostly British and American, some of whom had close and ongoing connections with the CIA linked private security company Military Professional Resources Incorporated (MRPI) that trained KLA guerillas. Some of its members pursued an agenda of stirring up opposition to Milošević. Speaking of Walker’s role in destabilizing the Milošević regime, Roland Keith, a former KVM member, testified “It appeared to me…powers higher than mine had no real interest in rebuilding stability in Kosovo, but had other political agendas of which this (peace) would not play a role whatsoever” (Trial transcript 14 September 2004: 32760).

Comparable questions arise in respect of the points of view expressed in the film. Though giving the impression of impartiality and balance, the backstage interviews largely follow a particular pattern that is decisive to the film’s overall impression. In the absence of interviews with Milošević himself, Dragoslav Ognjanovic is left to represent his case to the camera, but this amounts to little more than the relaying of a laudatory defense of Milošević’s character and the injustice felt by his supporters that Milošević had been brought to trial. The interviews with Nice, however, provide acute analyses of the issues the trial raises and dilemmas faced by the prosecution. In the absence of any commentary and critical investigation of the facts, or adequate representation of Milošević’s situation, Nice’s elegant dissection of the case serves to substitute for this absence, becoming the conduit through which the viewer comes to see and understand the case.

As a result, though the film appears to aspire to pure observation and objectivity, its point of view converges closely with that of the prosecution. In many respects the problems the film raises in this regard result not just from its judgments of what to show and what to exclude but also from the aesthetic limits of the film’s observational style of presentation, which place severe restrictions on its mode of inquiry. The aesthetic form of the film, ostensibly watching the trial unfold as if it was passively providing a documentary record, cripples its capacity for investigation and critical scrutiny. These restricted terms of reference ultimately render both the history and operations of the trial unintelligible, as much of what is significant about the trial’s rules of procedure are neither immediately visible in the courtroom nor broached in the interviews backstage. Article 53 of the ICTY’s rules of procedure provides for non-disclosure of documents, allowing it to operate without transparency. Against articles 6 and 14 of the International Covenant of Civil and Political Rights of the European Convention of Human Rights’ provisions, the court ruled in favor of allowing witness evidence to be submitted in closed session, as well as testimony from anonymous and protected witnesses, measures used liberally by the prosecution. In all 98 of the prosecution’s 296 witnesses testified anonymously. Accordingly, the trial frequently went in and out of private session. Nice has later raised questions over the unusual circumstances surrounding the evidence, carefully vetted by Washington and referred to as a “notorious lie” by Milošević, given by General Wesley Clark delivered in closed session (Nice 2003: 25). As a result of the trial’s heavy use of closed sessions, the historical record that Nice regarded as an essential feature of the trial’s purpose contains large passages of redacted text.

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