JONATHAN MILLER: After two years of listening to witnesses accuse him of war crimes and genocide, it was finally time for Slobodan Milosevic to present his version of events. The only trouble was Mr. Milosevic wasn't feeling so good. The trial, he protested, was bad for his blood pressure.
SLOBODAN MILOSEVIC (Through interpreter): My health situation has deteriorated and it is the direct result of your refusal to enable me to get my health back.
JONATHAN MILLER: The prosecution suggested that a ill health was to some degree self-inflicted.
GEOFFREY NICE: We are going to be in an extremely unsatisfactory position of facing the accused having recurring ill health and a regularly fractured timetable with no certainty of a sensible and reasonable conclusion date.
JONATHAN MILLER: The international tribunal has got three defense lawyers at the ready, but Milosevic has refused to deal with them.
PATRICK ROBINSON, Presiding Judge: The time has come for a radical review of the trial process and the continuation of the trial in the light of the health problems of the accused.
JONATHAN MILLER: The judges will now decide whether the court should impose defense lawyers. Milosevic as a qualified lawyer has insisted on conducting his own defense. He's had to wade through more than half a million documents. It's five years since the former Yugoslav president was first indicted by the international tribunal in the Hague. He faces more than 60 charges of war crimes, crimes against humanity and genocide linked to the wars in Croatia, Bosnia and Kosovo. The prosecution charged that he knowingly and willingly participated. Legal observers say his defense will rest on efforts to disassociate himself from ethnic Serb leaders such as Karadzic and Mladic, who remain on the run. It's thought that he'll argue he had no direct responsibility over their forces behavior. As to Kosovo and the charges that he orchestrated the ethnic cleansing of Albanians in the province five years ago, he's likely to argue that it was done to protect the Kosovo Serb minority. Now a defiant Milosevic wants to call 1600 witnesses in his defense including Bill Clinton and Tony Blair, who together ordered the bombing of Belgrade.
JIM LEHRER: Here to talk comparatively about both the Milosevic and Saddam Hussein trials is Diane Orentlicher. She's a professor of law at American University and director of its war crimes research office. Professor, welcome.
DIANE ORENTLICHER: Thank you. Happy to be here.
JIM LEHRER: First on the Milosevic trial. If in fact the judges decide that he is too sick to stand trial, is he set free? What happens?
DIANE ORENTLICHER: Well, there are two different questions. One is whether he's too ill to stand trial. The other is whether he's too ill to continue to represent himself. And the judges may very well decide that the moment has come to force him to accept counsel to represent him.
JIM LEHRER: And if that's the case, the trial just continues.
DIANE ORENTLICHER: The trial continues and he's more of a typical defendant in the dock although I don't think anyone would call Slobodan Milosevic a typical defendant.
JIM LEHRER: Why has it taken two years to get to this point, more than two years actually?
DIANE ORENTLICHER: Well, the trial itself has gone on, I believe, it's only 90 days in court. It's taken two-plus years, however, mainly because of his health. The court has had to adjourn repeatedly because of his ill health.
JIM LEHRER: But if in fact it turns out this health problem does not only preclude his representing himself but the trial to proceed, what will then happen?
DIANE ORENTLICHER: Well, that's the end of it. There won't be a final judgment. This wouldn't be the first time that someone who has been charged with serious crimes, a former head of state, in fact, has escaped the final judgment on grounds of ill health. This happened with former Chilean President Augusto Pinochet was as well. He was declared mentally unfit to stand trial in chilly a couple of years ago. What that means is there won't be a final judicial judgment. I don't think we've reached that yet. Tomorrow the court may very well decide that he's healthy enough to stand trial but not to represent himself.
JIM LEHRER: Now this representing himself has become a real situation in and of itself, has it not?
DIANE ORENTLICHER: Yes, it has. You know, the trial is known around the world because of his performance. There have been concerns that I think are carrying over on to the trial of Saddam Hussein about that. But I think those concerns are based in large part on the splash he made his first day in court a couple of years ago. The trial has settled into more of a routine over the last two years and the theatrics have settled down a fair amount.
JIM LEHRER: Now as a matter... let's back up a minute on these two trials. . Milosevic of course is being tried in an international tribunal in the Hague. Saddam Hussein is being tried in his own country by his own people. Why the difference?
DIANE ORENTLICHER: Well, we have to go back to the creation of the tribunal. It was set up in May of 1993 by the U.N. Security Council at a time when Yugoslavia was at war and when Bosnia in particular was very much up in flames. The war there was in full rage. And the Security Council was taking a number of measures to try to address that situation, create ago tribunal was one of them. It was seen as an extraordinary measure that the Security Council believed would help restore peace in Yugoslavia. At the time it was created, there were concerns that it was a measure taken by the Security Council in part because it wasn't prepared to take stronger action. That said, whatever political reasons may have underlay its creation, it sort of took on a life of its own.
JIM LEHRER: Now in the case of Saddam Hussein, it never even went to the U.N. Security Council. They just decided that the provisional government and now the interim government there just decided we're going to do it here, right?
DIANE ORENTLICHER: That's right. There's a very important difference in terms of the local attitudes toward prosecution. Yugoslav leaders were not eager to prosecute their own for war crimes committed during the conflict in the Balkans. In fact, Slobodan Milosevic was president of Yugoslavia when this tribunal was created. In very striking contrast, Iraqi authorities are quite keen to put Saddam Hussein and his deputies on trial in Iraq. The other important factor is the attitude of the United States which supported the creation of a Yugoslavia war crimes tribunal. In fact it provided leadership in the creation of that. In contrast in Iraq the U.S. Government has strongly supported the idea of having a local court and has provided a lot of assistance for that.
JIM LEHRER: As a matter of process if Saddam Hussein decides, as Milosevic did, to defend himself, can he in fact do that?
DIANE ORENTLICHER: It's not clear to me whether he will be allowed to represent himself. The statute doesn't clearly preclude that. His family has engaged some 20 lawyers already so at this point he seems prepared to have a full complement of lawyers representing him.
JIM LEHRER: Another issue that was raised by the Milosevic trial was that it was televised and became a big deal among his supporters back in Serbia back in the old Yugoslavia. Is that also a possibility here with Saddam Hussein?
DIANE ORENTLICHER: It's possible under the statute. The statute provides that the trial shall normally be public but proceedings can be closed for various reasons. The executive director of the tribunal has said in recent days that the proceedings will not be televised in part, in large part, in response to the example of the Milosevic trial. He may be over learning the lessons of the Milosevic trial here. I think there may be some risks to try to control this process a little too much. It may in fact feed anxieties that this process is being controlled and that Saddam isn't going to get a full defense.
JIM LEHRER: That's important, is it not, that it be perceived to be open and fair and no holds barred, correct -- from the defendant's point of view?
DIANE ORENTLICHER: Absolutely. There are a lot of concerns about whether Saddam Hussein can receive a fair trial in Iraq. And I think that it's important for the Iraqi authorities to address those anxieties and to be fully transparent and to bend over backwards to address concerns about whether Saddam Hussein can in fact get a fair trial.
JIM LEHRER: You follow these kinds of things. Just as a matter of history, how unusual is it for two former dictators to be in the dock, so to speak at the same time?
DIANE ORENTLICHER: Historically it's quite amazing. I think that the greatest similarity between the two trials is the simple fact that two former dictators are in the dock. That's not something we've historically expected. We have seen that happen several times in recent years. A former prime minister of Rwanda pled guilty before another U.N. tribunal about five or six years ago. And we saw a very real possibility that Augusto Pinochet would face some dined of legal process. It was detained for 16 months in London. So there has been a psychological sea change in the past six years or so.
JIM LEHRER: Fair trials and all that aside, processes aside, is it fair to say-- as most people are saying now-- that there was never any question that if it ever got to it that Milosevic would be found guilty just like there's no question if it ever gets to it that Saddam Hussein will be found guilty. These are basically show things for reconciliation and punishment rather than for justice.
DIANE ORENTLICHER: I think it's very important that the trials of both of them send a message that the question of guilt has to be proved and it has to be proved beyond a reasonable doubt. These men wouldn't be on trial if there weren't mountains literally of evidence against them. There are good reasons why they're being charged as suspects but it's a very different thing to say it's a foregone conclusion that they'll be found guilty. I wouldn't be surprised if in both cases they're acquitted of some charges. Frankly I would be surprised if they're acquitted altogether.
JIM LEHRER: Professor, thank you very much.
DIANE ORENTLICHER: Sure.