SLOBODAN MILOSEVIC strutted into the United Nations courtroom in The Hague to be charged with war crimes, crimes against humanity and genocide. Asked to enter a plea of guilty or not guilty, he would do neither. When the presiding judge asked whether he wanted to hear the indictment against him read aloud, Milosevic replied: “That’s your problem.”

He was right. Four years on, the Milosevic trial is still more our problem than his. It was meant to be rather different — a bloody autocrat ousted from power, imprisoned by the UN and held accountable for orchestrating the destruction and depravity of the Balkan wars. Yet this stirring and straightforward story now seems lost. The question of guilt or innocence has been relegated by the demand: why is the trial taking so long? The time taken causes impatience and boredom, but is justice jeopardised? And, given that the success or failure of the entire tribunal will be judged by this one trial, has Milosevic sabotaged international criminal justice for good?

Before knowing that the Milosevic trial is too long we might well ask what length it should be. Measured against its august predecessor, Nuremberg, it certainly is lengthy. The cases against leading Nazis and their organisations were opened, closed, pronounced and carried out in less than 12 months. Yet, despite the apparent similarities, there are numerous salient differences. Nuremberg was a paper-based not a testimonial courtroom. The Nazi mania for written orders and reports swamped the trial with damning documents; Milosevic has left little written proof of criminal plans. Different, too, is the Yugoslav tribunal’s sincere effort to be a model of human rights. Milosevic benefits from procedural safeguards that would have been thought unsavoury in 1945-46. And Nuremberg was far simpler — there were in total four charges. The complex crime of genocide had yet to be legislated and, instead, the overarching criminal charge was, somewhat perfunctorily, that of waging a war of aggression.

The elaborate accusations against Milosevic do not lend themselves to a speedy outcome. The prosecution staggers to prove a grandiose “common scheme, strategy and plan” spread across the entire Balkans. Milosevic is charged with every offence that he is likely to have committed — more than 60 in total — to narrate, record and condemn his regime. At the same time, the prosecution clings to the useful fiction that this is a “straightforward criminal court”.

Milosevic’s trial is either historic or commonplace. It cannot be both.

Milosevic is a lawyer, a leader and a demagogue as much inside the courtroom as out. His trial strategy is political, not lawyerly. Even so, many lose sight of his first and ever-present accusation: that the tribunal lacks the jurisdiction to try him. Milosevic portrays himself as the avatar of a national grievance. He speaks of “we” not “me”, depersonalising the accusations against him and turning the trial into an inquisition of the entire Serbian people. Pivotally, he represents himself. He will grandstand indefinitely; the trial is lengthened by his continual scene-setting, lectures and historical justifications. But, when remembering to “make history”, the prosecution is just as prone to these lecture-room theatrics.

Unsurprisingly, for a man who once led a country, Milosevic is a tested political tactician; he has little interest in an expeditious trial. He is also a vain man who enjoys being the focus of attention. He smirks and bullies in the courtroom. He uses a single earpiece to hear the court translators, not a headset like everyone else. He lounges in his seat, never stands to address the court, and prefixes everyone with a drawling Mister — women are largely ignored — not Your Honour, although the result always stops just short of the “non-cooperation” that the prosecution contends. Milosevic has an immense influence over the way the court tries him. Judges and prosecutor may favour brevity; Milosevic does not.

Milosevic is also in notoriously ill-health. As he is both defendant and defence counsel, on his frequent sick days the court abandons its already pared-down schedule. Exasperated, the prosecution was moved last summer to demand that the court impose counsel, forcing Milosevic to sit out questioning and cross-examining witnesses. The prosecution pleaded, and the court agreed, that an overlong hearing impaired the overarching right of the accused to a fair trial. But, as Milosevic’s reluctant court counsel, Steven Kay, QC, noted: “Sick people do not stand trial.”

This mid-trial manoeuvre seemed contrived. What if it takes four more years? We are far past the point at which the trial will be remembered for being quick. What hangs in the balance is whether it will be remembered for being fair.

In truth, dissatisfaction with the time taken in trying Milosevic is dependent on our notions of what such a trial is intended to achieve, and when. Our perception of time is a function of expectation. When waiting for an outcome that we think is unavoidable — say, Milosevic’s guilt — the time taken to prove this is always too long. But it is the process, not the outcome, that is paramount. Trials are not obedient means of indoctrinating the masses of their past leader’s misdeeds. In other words, it is not the complexity of proceedings, the multiplicity of charges, the prolix rhetoric of defendant and prosecution, vanity and ill-health that make this trial so long, it is the presumption of innocence. This is a lesson that should strengthen, rather than sabotage, international justice. After all, the outcome is, as it should be, still in some doubt.

The author is legal adviser to the US Civil Division European Office. This article represents his personal view

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