The trial of former Yugoslav President Slobodan Milosevic at the UN war crimes tribunal in The Hague has raised a variety of questions about the powers of the tribunal, which was established as an ad hoc body in 1993. RFE/RL correspondent Jolyon Naegele examines the tribunal's powers to subpoena present and former officials from outside of the former Yugoslavia to testify.
Prague, 14 February 2002 (RFE/RL) -- Former Yugoslav President Slobodan Milosevic, who today began his defense before the International Criminal Tribunal for the former Yugoslavia (ICTY), has said in the past he intends to demand that present and former world leaders who were in office during the 1990s be subpoenaed to testify before the UN tribunal.
Former U.S. Presidents George Bush and Bill Clinton and former U.S. secretaries of state James Baker and Madeline Albright are among those Milosevic could be expected to want subpoenaed. Others include former British and German leaders John Major and Helmut Kohl and the current British and French leaders Tony Blair and Jacques Chirac.
But ultimately, it is up to the ICTY to decide whether to heed any subpoena requests from either Milosevic or the "friends of the court" appointed by the tribunal to represent the former Yugoslav president in the absence of personal attorneys. Milosevic has chosen to defend himself.
Aryeh Neier is the president of the Soros Foundation Network's Open Society Institute in New York and the author of "War Crimes: Brutality, Genocide, Terror and the Struggle for Justice." He says he does not expect to see any past or present Western leaders testifying during the Milosevic trial: "In any trial, it's really up to the judges to determine whether the testimony of particular witnesses is relevant and material so far as the particular criminal charges are concerned. And it would be unlikely that the judges would find that the actions of government officials in another country are directly material unless one could show, or unless the defense could show, that those government officials directly conspired with the defendant or forced the defendant to do certain things."
Ruth Wedgwood is professor of international law at the Washington-based School of Advanced International Studies at Johns Hopkins University. Like Neier, she says she has doubts that an ICTY judge will find the testimony of former world officials necessary or relevant.
"Well, there are two different issues in getting a witness before the court. One is whether the witness will attend voluntarily. The second is whether the court will make space and time for their testimony in the trial. And both of them have a connection, those two issues, because the judges are going to want to keep the trial pretty well focused on the issues at hand," Wedgwood says. "So if Milosevic thought, for example, that he could get great mileage out of showing that he used to know important people, and they were going to call Bill Clinton to say, 'did you ever meet Slobodan Milosevic?' -- I don't think the judge would find that relevant."
Wedgwood says the onus will be on Milosevic and the three lawyers appointed as amici curiae -- or friends of the court -- to, in her words, "make a proffer of what witnesses could say or could be expected to say and show why that is relevant to what the trial is about." But she warns that if the prosecution engages in "a fishing expedition" rather than holding to a strict line of questioning, Milosevic can be expected to respond in kind.
"To the extent that the prosecution roams broadly into attacking not only particular acts that Milosevic did but also introducing a lot of testimony about the Serbs' state-building project, that Serbia allegedly wanted a mono-ethnic state -- I think it will create greater latitude for Milosevic to roam a bit far afield as well," Wedgwood says.
Experts point to the precedent set in the ICTY's trial of Bosnian-Croat Army General Tihomir Blaskic, whom the tribunal sentenced nearly two years ago to 45 years in prison. All of Blaskic's efforts to subpoena senior Croatian Defense Ministry officials were rejected by the court.
Richard Dicker, the director of Human Rights Watch's international justice program, is attending the Milosevic trial. He says: "The subpoena power of the court has been severely challenged in the past. That arose in the case of the Croatian general, Tihomir Blaskic, when the prosecution attempted to subpoena the ministry of defense and the minister of defense in Croatia. And essentially that subpoena effort was squashed. So there is some question, in terms of the authority of the court to actually issue a binding subpoena for a sitting government official acting in his official capacity."
Similarly, Wedgwood considers the court's ruling in the Blaskic trial as precedent-setting in limiting the tribunal's powers of subpoena: "The court can issue directly a binding order on a state requesting its cooperation. There was a rather complicated decision several years ago in the Blaskic case concerning a Croatian colonel who had been accused of ethnic cleansing in central Bosnia. And the court ruled there that in fact -- because this was an international system as well as a criminal system -- the court as an international body could n-o-t demand that any particular witness could be produced by a state, even an eyewitness, unless they were acting in a private capacity at the time."
But Wedgwood says that because the states from which Milosevic would want to summon witnesses are likely to be supporters of the war crimes tribunal, she does not think this is going to become a legal issue. However, she adds: "But in principle, it can be a problem, because if a state declines to cooperate despite its duty under the UN [guidelines] to cooperate with the court, all the court can ultimately do -- as they have themselves ruled -- is to go to the Security Council and ask for some kind of sanction against the uncooperative state, and the council has not had this time on its agenda."
But what about issuing subpoenas for former leaders -- such as Bill Clinton?
Human Rights Watch's Dicker has this to say: "It could be different in terms of a former government official who would not be able to claim the kind of immunity his job function [allowed]. But I don't think, as far as I'm aware, that the issue has really been tested before the tribunal so we are moving into some uncharted territory here."
But would the tribunal conceivably ask the UN Security Council to back up a subpoena for a Western former officials? Neier of the Open Society Institute says that depends on the decisions of the ICTY judges.
"The tribunal is an arm of the United Nations and the tribunal has asked the Security Council to enforce its arrest orders against particular defendants, and it could do the same with respect to witnesses who are subpoenaed. But it's all-important that the judges themselves should first determine that they need the testimony of a particular official in order to conduct a fair trial. It would depend on showing that the defendant had something to say which had a direct bearing on the guilt or the innocence of the defendant," Neier says.
But Dicker of Human Rights Watch says he is doubtful the Security Council would act, noting the international community's failure to enforce the tribunal's 1995 war crimes indictments of three Serbian generals accused of killing 260 hospital patients during the Serbian siege of Vukovar, Croatia.
"I think that could be done, in terms of the Security Council getting word from the court that there's been an instance of non-cooperation between the court and an individual the court had sought. I mean, we have seen many instances where there's been refusal to cooperate with the court. Certainly, the Security Council is made aware of that. But what the Security Council has done -- and I'm referring to people who've been indicted, and the situation with the generals associated with the massacre in Vukovar in November 1991 -- it doesn't follow that the Security Council will take action," Dicker says.
Much is likely to depend on how Milosevic constructs his defense. When the trial opened on 12 February, Chief Prosecutor Carla del Ponte described Milosevic as "an excellent tactician [but] a mediocre strategist." Milosevic's ability to convince the court of the need to subpoena present and former world leaders will also show to what extent del Ponte's characterization still applies.