The Trial of Slobodan Milosevic

By Michael Montgomery

On the Internet at: www.americanradioworks.org/features/milosevic/index.html

The trial of Slobodan Milosevic promises to be the biggest war crimes trial since the prosecution of Nazi leaders at Nuremberg. Can a civilian head of state, indicted while still in office, be held accountable for crimes carried out by rank-and-file troops? Legal experts say the outcome could help set the course of global justice for war crimes and other gross human rights abuses.

When Slobodan Milosevic first appeared in trial chamber III of the United Nations war crimes tribunal in The Hague, the newly arrived detainee projected the air of a head of state ready for battle.

Speaking in accented English, Milosevic denounced the tribunal as a puppet of western powers and made it clear to presiding judge Richard May that he would not play by the court's rules.

"I consider this tribunal a false tribunal and indictments false indictments," Milosevic said. "It is illegal, not being appointed by the U.N. General Assembly, so I have no need to appoint counsel to an illegal order."

After several quick exchanges with Judge May, Milosevic then hinted at a possible defense strategy: "This trial's aim is to produce false justification for the war crimes of NATO committed in Yugoslavia," he said.

Minutes later Judge May shut off Milosevic's microphone and adjourned the hearing.

Slobodan Milosevic's extraordinary appearance at the tribunal came two and a half years after the Kosovo war and nearly ten years after the beginning of wars in Croatia and Bosnia. Milosevic now faces criminal indictments for alleged war crimes in all three conflicts.

The stakes are high. Historically, military commanders and not civilian heads of state have been prosecuted for war crimes and many nations have sought to keep it that way.

"These are novel issues that have never before been decided," says Michael Scharf, a war crimes expert and professor of international law at the New England School of Law. "At Nuremberg, Adolf Hitler was not around. He had already committed suicide so you only had his second in command, Goering. Here you've got the president himself, the architect of ethnic cleansing and genocide. If you're going to try to prove these things, this is the trial you've got to win."

The International Criminal Tribunal for the former Yugoslavia (ICTY), as the UN tribunal is officially known, indicted Milosevic for war crimes in Kosovo on May 26, 1999, as the three-month war was in its final stage. Tribunal prosecutors are believed to have announced the charges in part to scotch any efforts to rehabilitate the Serbian leader once a peace deal was signed with NATO.

NATO troops entered Kosovo two weeks later to oversee a withdrawal by Serbian forces and set up a temporary UN administration. Alongside western troops came war crimes investigators who launched a massive effort to locate bodies of ethnic Albanians killed during the war.

Forensic teams from around the globe, including the FBI, eventually exhumed some 4,000 bodies, though the estimated death toll remains higher. Investigators first task was to quickly put meat on the bare-bones indictment against Milosevic, which was drawn up largely from the accounts of Albanian deportees interviewed in neighboring countries during the air war.

"Our greatest fear was that Milosevic would simply turn himself in and we would be stuck with an indictment we couldn't prove," admitted one ICTY investigator in July 1999.

In its amended form, the ICTY indictment for Kosovo alleges that Milosevic and four top Serbian officials participated in a "joint criminal enterprise," whose aim was the expulsion of a substantial portion of Kosovo's ethnic Albanians to secure continued Serbian control over the province.

The indictment describes "widespread and systematic" human rights violations, including deportations, destruction of homes and property, murder and rape. In all, the indictment alleges some 800,000 ethnic Albanians were expelled from the province by troops under Milosevic's command.

Milosevic faces four counts of crimes against humanity and a total of more than 60 counts in all three indictments. In Bosnia, Milosevic is charged with genocide, the most serious of all war crimes.

The original Kosovo indictment was based on Milosevic's formal authority as commander of Serbian and Yugoslav forces in wartime. To the delight of ICTY prosecutors, Milosevic has boasted to the court of his role as commander-in-chief during the Kosovo war.

But legal observers say that in order to convict Milosevic, prosecutors must prove that the Serbian leader had active, or "de facto" control over his troops in Kosovo.

"If he was commander in title only that is not sufficient for a conviction," says Michael Scharf.

"Prosecutors are going to have a show a very clear chain of authority, and that Milosevic had effective control over the acts committed in Kosovo. That he could stop them if he wanted and that he could punish individual perpetrators if he desired," he says.

Investigators say Milosevic did not leave a paper trail connecting him to specific war crimes or even to commanders and units who carried out deportations and murder in Kosovo.

Scharf compares Milosevic's disdain for written orders to Richard Nixon. "Nixon was famous for telling his subordinates, 'you know what I want to do, read my thoughts and do it.' He didn't specify in particular what he wanted. Milosevic had that same kind of leadership style. He would give general guidance. He would say the Kosovo Liberation Army (the ethnic Albanian guerrilla group) is a problem, deal with it. And perhaps his subordinates would read into it what they thought he meant," says Scharf.

The ICTY indictments maintain that Milosevic created a secret state together with a cabal of Serbian officials throughout the former Yugoslavia in order to exert Belgrade's control over much of the country. ICTY chief prosecutor Carla del Ponte argues that Milosevic's "joint criminal enterprise" is the key link between events in Croatia, Bosnia and Kosovo over a ten-year period.

But the challenge remains for prosecutors to provide convincing evidence that Milosevic actively controlled the conspiracy, and thus is directly connected to killings and deportations in the field.

Because of Milosevic's formal authority over Serbian forces, the Kosovo prosecution was widely seen as an "open-and-shut" case for Carla del Ponte. But as recently as last summer ICTY field investigators were in a frantic search for direct evidence against Milosevic. According to sources close to the tribunal, investigators had little documentation and no direct testimony against Milosevic.

Then, investigators scored a breakthrough. In October 2001, prosecutors released the names of Serbian officials under investigation as members of Milosevic's "joint criminal enterprise." ICTY lawyers calculated that some people on the list might decide to cooperate with investigators rather than face the possibility of criminal indictments.

By the end of 2001, dozens of former Serbian officials, including some of Milosevic's closest cohorts, had agreed to testify against him, according to chief trial attorney Jeffrey Nice. Based on names released in the Croatia and Bosnia indictments, those officials could include members of Serbia's security service (RDB), the backbone of Milosevic's secret state.

Legal sources in Serbia say tribunal officials have tried to secure the testimony of a key player in the wars in Croatia and Bosnia—Jovica Stanisic. As head of the Serbian security service, Stanisic was Milosevic's chief spymaster until he was sacked in 1998 after reportedly disagreeing with Milosevic and the former leader's wife over Kosovo policy.

The security service assumed command authority and directed key field operations in western Kosovo during the air war, according to numerous fighters interviewed by American RadioWorks.

These security units were lead by the Unit for Special Operations (JSO) under the command of Franko Simatovic and Milorad Ulemek Lukovic. Among many attacks allegedly led by Lukovic was a May 14, 1999 assault on the western Kosovo village of Cuska, in which dozens of unarmed ethnic Albanian men were executed. Serbian eyewitnesses say Lukovic ordered the attack in a May 11 meeting in nearby Pec, after announcing to local commanders that he had orders from Belgrade that all ethnic Albanian villages in western Kosovo were to be destroyed and Albanian civilians deported.

During the Kosovo war, JSO and other elite units were only one or two levels removed from Slobodan Milosevic, according to police and army commanders interviewed by American RadioWorks.

Michael Scharf says these are the kind of fine details the ICTY must show in order to convict Milosevic.

"In order to prove that Milosevic had effective control, you're going to have to allow the judges to look inside the black box of the Yugoslav national security council and find out how decisions were made, what was Milosevic saying during those meetings, how was that interpreted and how did commanders respond," says Scharf.

Slobodan Milosevic and his dwindling supporters in Belgrade have admitted that rogue Serbian elements may have committed some abuses in Kosovo. But they insist those acts pale in comparison with the crimes of the Kosovo Liberation Army (KLA), the Albanian guerrilla group, and NATO, which bombed Serbia for nearly three months, killing an estimated 500 civilians.

"I was indicted (on) 26 May, the 60th day of NATO aggression against Yugoslavia, when I was defending my country," Milosevic told Judge May in his second appearance before the tribunal.

In other comments and in material circulated by Serbia's Socialist Party—the former communists—Milosevic claims NATO worked directly with Albanian guerrillas in an effort to dismember Yugoslavia and force Serbs to submit to America's global capitalist hegemony.

Milosevic's case has drawn support from leftist and anti-globalist groups, including the American Communist Party.

Though Milosevic has confounded prosecutors by refusing to appoint legal counsel and maintaining that the tribunal is an illegal body, he gets informal advice from a team of lawyers including Ramsey Clark, the former United States Attorney General.

Clark and Canadian lawyer Christopher Black also have defended former Rwandan officials at the UN's sister war crimes tribunal in Arusha, Tanzania.

Milosevic and his legal advisors have signaled that they want to use the Kosovo trial to draw attention to NATO's air war against Yugoslavia. Milosevic has hinted that he may call as witnesses former U.S. President Bill Clinton, former Secretary of State Madeleine Albright and former NATO commander General Wesley Clark. It remains unclear whether Judge May will support Milosevic's witness list, especially if the defendant refuses to "recognize" the court.

Milosevic's "guerrilla defense" got a brief lift at the end of 2001 when Judge May rejected a prosecution request for all Milosevic's alleged crimes to be tried together. The judge also cut the prosecution's list of 110 proposed witnesses to 90 and demanded that it halve its 123 planned affidavits and 1,400 documents. But in early February, 2002, the tribunal appeals chamber overturned Judge May's decision, accepting prosecutors' arguments that a single trial was more appropriate. Prosecutors are expected to open the trial with the Kosovo case and move on to Croatia and Bosnia later in 2002. Chief Prosecutor Carla del Ponte says she expects the trial to last two years.

In recent appearances, Milosevic has switched from speaking English to Serbian in what is seen as an effort to sway public opinion in Yugoslavia. "Milosevic is trying to discredit the tribunal in the eyes of the people," says Michael Scharf.

In addition, since the September 11 terrorist attacks in the United States, Milosevic has attempted to portray Serbia's war in Kosovo as a battle against Islamic terrorists.

"Milosevic was dealing with a threat from the Kosovo Liberation Army, a group that the United States and Europeans had labeled a terrorist group," says Scharf. "Before September 11, we could easily dismiss this and say that even if the KLA were partly terrorists, Milosevic went too far. But what he and his troops did against the KLA, Milosevic will try to argue, is no different than what the United States has done in Afghanistan."

The ICTY has investigated both NATO and the KLA for alleged war crimes. In 2000, a special committee of prosecutors determined that a full ICTY investigation of NATO's air war was not warranted, though the group only examined public record documents and testimony. Recently, the European Court of Human Rights declined to hear a civil suit against NATO governments brought by families of victims of an air attack on the Serbian television headquarters in Belgrade.

Carla del Ponte said she expects indictments against former KLA commanders for killings of Serbian civilians, but sources say those investigations have bogged down.

Since Slobodan Milosevic was indicted, tribunal prosecutors have insisted they will be even-handed in their approach to justice in the Balkans. As if to prove their point, prosecutors have charged senior Croatian and Bosnian commanders with crimes against Serbs.

Michael Scharf argues that the Milosevic trial remains a vital ingredient for reconciliation in the Balkans.

"Thousands of lower level people committed atrocities," says Scharf. "But for there to be reconciliation, the people going back to their homes in the same neighborhoods as their former enemies have to believe that it was the leaders who were most responsible for the crimes, that all these lower level people got caught up in the whirlwind of killing."

Scharf says the showdown in The Hague is also an important factor in establishing the long-term feasibility for a permanent global war crimes court, a body being slowly established despite staunch opposition from the United States.

"The success or failure of the Milosevic trial is going to go a long way in deciding whether the new international criminal court is seen as effective and fair and gets the backing it needs to accomplish its tasks."