BEFORE THE WAR CRIMES TRIBUNAL: SUFFICIENTLY PROVED CHARGES

By Dunja Melcic

September 2002, which marked the beginning of the trial to Slobodan Milosevic, was a historical date: for the first time in Europe, a head of a state appeared as a defendant before an international tribunal. The second, ensuing historical event, namely the court verdict - as already known - went missing. Milosevic, a hypertonic with heart problems, died only about ten court days before the closing of the main hearing. This inglorious end, however, does not mean that a view about the evidence against the accused and the sustainability of his defense could not be formed.

Half a year after having been deposed on October 5, 2000, Milosevic was arrested in Belgrade on charges of abuse of power and misappropriation of public funds. In late June 2001 he was extradited to the International Criminal Tribunal for the Former Yugoslavia in The Hague, which indicted him in the summer of 1999 during the war in Kosovo. Despite the frequent claims to the contrary, Milosevic's extradition was legally faultless. As a result of investigations in other cases addressed by the Serbian judiciary, he was subsequently suspected of inciting murder in four specific instances.

Appearing before the Tribunal Milosevic, on the one hand, claimed he did not recognize it, while on the other hand, acting as his own counsel, he at least partly observed its rules, albeit only when it suited his purposes. This elicited a comment of the dean of Belgrade's independent jurists, lawyer Srdja Popovic: "Pursuant to the Serbian Criminal Procedure Code currently in force... a defendant who offends the participants in a trial and the court - which is what Milosevic constantly does in the crudest possible manner - may be removed from the courtroom temporarily or for the duration of case presentation (Art. 299)", a procedure that could be recommended to the war crimes tribunal.

Course of events

Presentation of evidence before the Tribunal started with the case of Kosovo in February 2002 to end in early September 2002 after 90 court days. About 20 days later, followed the introduction of evidence on charges related to the wars in Croatia and Bosnia-Herzegovina, which took until February 2004 to complete. The defendant was given 150 court days for defense and he started the questioning of his witnesses in September 2004. Cases related to Kosovo, on the one hand, and Croatia and Bosnia-Herzegovina on the other, were objectively different. By the time Milosevic appeared before The Hague Tribunal several proceedings against war crimes indictees from both wars (1991-1995) had already been instituted, or even completed. In this way, the facts under the international criminal law - namely "war crimes" (Art. 2 and 3), "crimes against humanity" (Art. 5) and "genocide" (Art. 4 of the Statute) were already sufficiently substantiated. The August 2001 verdict pronounced on the commander of Bosnian Serb armed forces, Radislav Krstic, tried for a mass murder in Srebrenica (1995), for the first time recognized the fact of genocide, as confirmed by the Appeals Chamber in April 2004. On the other hand, the case of punishable crimes in Kosovo (the banishing and massacring of Kosovo Albanians) implied a situation addressed for the first time and thus requiring substantiation. The external difference between the two parts of the process was revealed in the fact that in the former numerous witnesses appeared to testify for the first time, while in the latter, the prosecution could largely draw on the documents, written testimonies, and already established facts and grounds for decisions. Prosecutors Carla Del Ponte, Geoffrey Nice, Dermot Groom, Dirk Ryneveld and Hildegard Uertz in their hours-long reading of the indictment referred to evidence that doubtlessly proved Milosevic's direct link with the gravest crimes. The defendant "had no personal contact with his victims"; on the contrary, he ordered the crimes to be "carried out by others". That is why the main task of the prosecutors was to prove Milosevic's authorship in the largely already proved punishable crimes. Although this was not, strictly legally speaking, completely achieved, they still managed to prove the likelihood, bordering on certainty, that Milosevic had been the one pulling the strings of the criminal project. The Tribunal thus obtained a very clear understanding that Milosevic indeed held all the power in his hands. The defendant himself contributed to completing this picture - sometimes inadvertently, and occasionally because he could not resist the temptation to show his own greatness.

From 1989 Milosevic was the president of Serbia (elected two times on 1990 and 1992 general elections; and made himself elected for the president of the "rump Yugoslavia" in 1997). Borisav Jovic, a member of the last Presidency of the socialist Yugoslavia (1990-1991) and Milosevic's closest trusted men at the time, appearing before the court in November 2003 stated that "Miloševic had the last say in all matters of great and not so great importance". This means that Milosevic alone decided on all promotions and dismissals, and this practice was described by Jovic before the court: he and Milosevic consigned the last Yugoslav defense minister general Veljko Kadijevic to retirement at the end of 1991 in order to simplify the attainment of their concept of "new Yugoslavia". (Jovic imagined that he had influence on Milosevic until 1992.) He confirmed that this new Yugoslavia implied the amputation of a third of the Republic of Croatia (claimed as "Serbian"). Milosevic changed the leading officials in the state, government, his party (SPS), army, secret service and the media shuffling them like pawns, as required by his tactical concepts. Jovic, himself deprived of the office of party deputy chairman in a record time of 12 minutes at an SPS conference in 1995, enlightened the court on a series of such sudden personnel decisions. This may suggest that all Serbs who were active in the wars were actually Milosevic's men.

A UN diplomat Charles Kirudja, who met Milosevic in Belgrade several times, confirmed this statement. He found it particularly conspicuous that he did not have an advisory team. He was informed on all things, and had he wanted to, he could have taken decisive measures at any point of time. Kirudja recounted how Milosevic summoned his secret police chief Stanisic and dispatched him to Ratko Mladic to end the crisis created by the Bosnian Serbs' taking hostage of 284 UN soldiers (May 1995). Many other western diplomats and negotiators offered numerous accounts to the effect that Milosevic wielded control over the local warlords.

As for Kosovo, it was possible to provide doubtless evidence that starting from 1998 Milosevic enabled the repressive apparatus to spread terror and banish Kosovo Albanians by transferring highest military and police personnel and merging their units with secret and security services, as well as with diverse special, i.e. paramilitary troops, to create a highly coordinated formation under a single command. Coordination and planning were clearly revealed by the systematic nature of the banishing (as confirmed by prosecution-supplied maps) and its fast execution (in a single week, between March 24 and 31, 1999, the total of 800,000 Kosovo Albanians were exiled).

Zoran Lilic who, by the grace of Milosevic, held the office of the president of the Federal Republic of Yugoslavia between 1993 and 1997, confirmed that it was Milosevic, rather than he, who decided on all things. Foreign diplomats testified to that in the court, saying that their negotiations had never been with Lilic. The fact that while the war was still raging Milosevic himself ordered the removal of corpses from Kosovo has been proven beyond doubt, including among other things by the testimonies of Milosevic's subordinates. In May 2001 the Serbian media revealed that a mass grave had been uncovered in Batajnica, near Belgrade, voicing suspicions that it held the bodies of Kosovo Albanian victims. The public soon found out about other similar mass graves in Serbia. Batajnica grave was used to bury the victims of the massacre in Suva Reka (near Prizren). But, they had been killed long before the burial and their bodies - including those of two small children and a woman in advanced pregnancy - loaded into a refrigerator truck (owned by a Prizren slaughterhouse) and scuttled into the Danube. But the truck floated up and was discovered in early April 1999. The police looked into the case. All the participants gave statements before the war crimes tribunal: a policeman, who secured the location described how 83 corpses and parts of bodies of people up to 70 years of age, in civilian clothes, were reloaded into another truck and taken away; the main and responsible agent claimed he had been under orders to do so, while Radomir Markovic, chief of the Serbian state security at the time., appearing at a hearing invoked Milosevic's personal order issued at an April 1999 session to the effect that all traces of crimes in Kosovo should be destroyed. DNA analysis performed in a Spanish laboratory left no doubt as to the victims' genetic congruence with their kin in Kosovo.

"Three months are out of question!"

The prosecution submitted an almost overwhelming quantity of material as proof of specific criminal acts. The court admitted in evidence the records of about 250 Milosevic's phone calls with other participants (e.g. the head of secret service Jovica Stanisic, head of the customs service Mihalj Kertes, leaders of various militia and paramilitary units, like Zeljko Raznatovic Arkan and Milorad Lukovic Legija), i.e. leaders of Serbian rebels in Croatia and Bosnia-Herzegovina, made by intelligence services. These, among others, included a call made in July 1991 where a cheery Milosevic informs Karadzic about the talks he has recently had with the German ambassador:
"So this ambassador says something like he has information that (Croatian Serbs) have arms; and I tell him 'Serbs always have arms! That's the kind of people we are. We always have arms'; Milosevic laughs contentedly and continues:

"Then he, naturally, bullshits, what can he say, right? So, he still thinks 'but they have mortars'. And I tell him 'mortars, too, are arms'." Karadzic at the other end of the line starts laughing and Milosevic adds:

"What did he expect? That I would tell him I personally sent them there!"

These phone calls confirm that Milosevic knew all the details and was directly involved in all events - small as well as large. When in September 1991 the Bosnian police arrested the leader of Croatian Serbs Milan Martic, Milosevic was concerned for his liberation, arranged a helicopter for speed and, as always, sent "Jovica" (Stanisic, head of security service) into the field to start the action, or cleanup, or regulation or correction. Milosevic decided whether the "Croatian Serbs" would sign the negotiated agreement, and if so who would do that. Already in the summer of 1991, Milosevic and Karadzic discussed the strategy for Bosnia-Herzegovina: the first thing to be done was to establish control over "Serbian" areas.

In the early spring of 1991 Milosevic got infuriated over the three-month suspension of Croatian and Slovenian independence imposed by the European Community. It is too long, it is out of question; a radical turnabout must be made at once:

"The only question now is to work out the abolishment (of the federal state) in line with our concepts..."

All under single command

No matter what his initial plans had been, Milosevic was in a hurry. Already in the spring of 1990 he instructed "Jovica" to take certain measures and the chief of the Serbian secret services sent to Croatia, to the Serbian fort of Knin, his right hand man Franko Simatovic, Frenki, to prepare the rebellion and train the Serbs. This was confirmed to the court in February 2003 by a number of people who knew about it, including Aleksandar Vasiljevic, head of the Yugoslav counter-intelligence service, who stressed that the Yugoslav security service supplied arms to the Serbian militia and paramilitary units, including those of the "chetnik leader" Vojislav Seselj, and that they all together ultimately stood under the command of the Yugoslav People's Army (JNA). In the 1991-1992 period 13 thousand officers of the JNA (subsequently renamed Army of Yugoslavia or VJ) were engaged in the (occupied) territories of Croatia and Bosnia-Herzegovina.

A protected witness testified that chetniks were transported to the war area in state-owned busses. According to numerous witnesses, all combat troops were paid by Belgrade and most of them were on Army payroll. Anyway, general Ratko Mladic's pension was until the summer of 2005 paid by the VJ - true, in the end, through an intermediary. Milosevic himself admitted to financing the Serbs in Croatia and Bosnia-Herzegovina and thus justified the misappropriation of public funds. In early December 2003 a former JNA officer described that his unit was shot at, allegedly from Croatian lines, by another JNA unit in order to assign the attack to the Croatian side (i.e. the "Ustasha") and use it as a pretext to march in and make the population flee. Milosevic however, dismissed all these incriminating data and maintained that the JNA interfered only to separate the "sides in the civil war". Numerous experts of the prosecution prepared detailed analyses of the diverse aspects of the war waged by the JNA. A Belgian military expert Reynaud Theunens analyzed confidential JNA documents and specifically proved the changed definition of the Army's role in the war. The film he screened for the purpose shows a JNA general praising the part of Arkan's militia ("Tigers") in taking Vukovar and explains: "These are not 'paramilitaries' but patriots who fight for the Serbian people... we surround a village, they march in, kill those who won't surrender and we move on..." Theunens submitted Milosevic's personal orders to the Serbian leaders in Croatia, i.e. Bosnia-Herzegovina. Milosevic wanted to invalidate this evidence, saying these were only instructions; Theunens however explained that in the JNA terminology an "instruction" equaled an "order".

The fact that Milosevic was the master of the whole military machine which responded to the political change in Croatia (and Slovenia) by force, starting from the JNA highest ranks through the militia and gangs of extreme right provenance to local units, was confirmed first-hand by Milan Babic, whose questioning took days to complete. Towards the end of 2002, Babic was "prime minister" of the self-proclaimed "Republika Srpska Krajina", initially with Milosevic's support. Babic's statement appeared credible just as his repentance and admission of quilt seemed genuine. In July 2005 Babic was sentenced to 13-year imprisonment for his responsibility for the persecution and banishment of the Croatian population and violation of human rights in the 1991-1992 period. In March this year Babic committed suicide in the Schevingen prison cell, where he was brought from an unknown place to testify against Milan Martic, accused among other things of a rocket assault on the Croatian capital Zagreb (May 1995). Judging by his appearances, Babic, a dentist by profession, was an unstable personality, and deserved greater care than he received in The Hague. His testimony was credible, since it had an internal consistence and matched other statements; he efficiently put up even with Milosevic's cross-examination and demonstrated sober realism. The presiding judge Patrick Robinson asked him: "Does what you say mean that Mr. Milosevic was the supreme commander of the JNA?" Babic responded: "Yes! True, formally it was the SFRY presidency, but de facto it was Milosevic".

Credible evidence

The convincing presentation of evidence concerning the war in Croatia, is due to the fact that it was the initial and obvious framework for the alignment of forces clearly under Milosevi's influence and, partly also to the high quality of certain pieces of evidence: statements of witnesses from informed circles and neutral observers; some of the them were eyewitnesses to what happened in Vukovar and other places under siege, e.g. the EC observers. Milosevic's responsibility and influence in the Bosnian-Serbian war could not be proved so easily, in view of numerous objective differences between the two countries and, in the first place, the fact that the Bosnian Serb leaders Radovan Karadzic, Momcilo Krajisnik, Biljana Plavsic and others, were politically more highly profiled than those in Croatia, and that the Serbian forces in Bosnia were stronger and had the backing of the second largest population in the country. By contrast, this project was in Croatia supported by only a part of the Serbian - mostly rural - population and the regime in Krajina, while a substantial segment kept on living peacefully in the remaining part of the country, as also pointed out by the prosecution. Furthermore, the Bosnian Serbs operated much more independently than those in Croatia in creating a purely Serbian unit, by forcible banishment of non-Serbs. In addition, in Bosnia-Herzegovina the JNA became consolidated with a new command structure and had superior operational power. Numerous measures were introduced for a blitzkrieg against Bosnia-Herzegovina and resulted in the fast capturing of cities and entire regions, including the siege of Sarajevo. This created an impression that the army had some independence, although the whole thing - as described by Jovic - had been planned long before.

The leadership of the Bosnian Serbs converged on the "strategic six-point plan" to attain its objective of creating a purely Serbian entity, endorsed in May 1992 by the Serb parliament. The first task was ethnic division, as Karadzic put it: "Our enemies, i.e. Croats and Muslims", should be "banished from their houses, so that we would no longer live in a joint state". The plan was to erase the Bosnian-Serbian border along the Drina, i.e. as Miroslav Deronjic, one of the main actors admitted, to banish the majority Bosnian Muslims from a 50-kilometer belt west of the Drina. Minutes of the parliament session provide additional substantial evidence of the extensive support to the creation of the Bosnian Serbs, which, just like its Croatian counterpart, could not survive or wage a war of its own. Milosevic's speech in the Bosnian Serb parliament (in early 1993) confirms that, just as clearly as Karadzic's admission (May 1994): without the help of Milosevic and Serbia "we would lack the resources to wage a war".

A UN official David Harland (who served in Sarajevo in 1992-1999) in his statement before the tribunal spoke of Milosevic's links with Bosnian Serbs. He tried to stress the different interests of Milosevic and Karadzic. Nevertheless, no doubt was left that Milosevic's influence was huge and that he was able to prevent or stop the crimes of Bosnian Serbs.

Srebrenica

But in real life, the units from Serbia did fight in Bosnia and took part in numerous war crimes. Milosevic had various sources and received daily reports on military activities in Croatia and Bosnia Herzegovina, including those on atrocities. A former JNA member using a video link made a statement about flying a helicopter to supply the troops on the front in eastern Bosnia from Serbia; the operations were at that time under the command of the chief of special police, Franko Simatovic - "Frenki" who, acting from Serbia, was in charge of all JNA and police units engaged there. Secretary of the most infamous militia commander Zeljko Raznatovic Arkan testified that his "Tigers" never fought in Croatia or Bosnia without the knowledge and orders of the Serbian security service.

Baring in mind that many of the Tribunal's sessions were closed to the public, it is difficult to say whether the judges were presented more specific data that directly link Milosevic with the Srebrenica massacre. His trusted man Lilic confirmed that he, at least, learned about it fairly early. Failure to initiate an investigation in order to identify the(co)perpetrators, also constitutes a punishable offense.

In any case, the events leading to the downfall of Srebrenica and the planned destruction of its entire male population were unambiguously established in other trials before the Tribunal, due among other things, to the cooperation of the accused Bosnian Serbs who admitted their crimes, as well as the above-mentioned Deronjic who pleaded guilty for the heinous crimes in the city of Bratunac in Eastern Bosnia and two officers of the Bosnian Serb army, Momir Nikolic and Dragan Obrenovic. It was an operation of substantial proportions (code named "Krivaja 95") and planned in the spring of 1995 by Ratko Mladic, which is why it is simply impossible that Milosevic knew nothing about it. It should sooner be assumed that he was thoroughly informed. In addition, evidence was given that on July 7, when the operation was already in full swing, Ratko Mladic went to see him. Deronjic, on his part, said that on July 8, Karadzic personally told him that all Muslims from Srebrenica would be killed. This gives proper weight to the testimony given by Wesley Clark in December 2003: On September 13, 1995 he asked Milosevic why, in view of his influence on the Bosnian Serbs, he had permitted general Mladic "to kill so many men in Srebrenica". Milosevic was off his guard and responded: "Well general Clark., I told him not to do that, but he would not listen."

The culprit's profile

The indictment and presentation of evidence against Milosevic, in terms of their precision and thoroughness, surpass most other efforts and achievements of the prosecution's team. The one thing the prosecutors have still failed to properly understand is Milosevic's character. The indictment refers to such characteristics as "not a nationalist", "a pragmatic, opportunist" to "craving power". It appears that the investigators have failed to grasp that Milosevic was a typical product of the Yugoslav-communist cadre factories. The social and psychological structure of personalities generated by these institutions, armed in particular with the ability to stop at nothing, fitted nicely with the Serbian nationalism, the appropriate collective mentality resistant to reality and the traditional Serbian political populism. Milosevic's portrait of a culprit cannot be highlighted without submerging into the criminal regime he created as the youngest, post-communist offspring of Tito's decades-long dictatorship. The prosecution provided sufficient proof of Milosevic's guilt, but the explanation of his actions and his motives would require a deeper inquiry.

5 April 2006

The second, revised edition of the author's manual on the "Yugoslav War" will soon be out of press.