The Legacy of an Unfinished Case

‘He’s cut the ground from under our feet, he’s turned out the light… Just like that!’  In these words, Carla del Ponte, chief prosecutor of the Yugoslav war crimes tribunal in The Hague, expressed her surprise at Slobodan Milosevic’s death.  Case No IT-02-54T was officially closed on March 14th 2006.  At the same time, another case was opened: that of the circumstances surrounding the defendant’s death.  Two investigations are now under way, one conducted by the tribunal and the other by the Dutch authorities. Will they lead to other proceedings, before other courts?  There is already a body of evidence to suggest that many mistakes were made – by the various doctors involved, the prison authorities, the judges and Slobodan Milosevic’s advisers.

Should the four years of the Slobodan Milosevic trial now be considered a failure?  As far as history is concerned, the former President of Yugoslavia has already been condemned by a large section of public opinion.  But the absence of a judicial ruling on some of the specific questions raised by the prosecution leaves a bitter taste in the mouth, a feeling of unfinished business.

The 466 days of the Milosevic trial have left a legacy of more than 1,200,000 pages: 50,000 pages of transcript, detailing the testimony of around 350 witnesses; more than 1,250 exhibits, photographs, maps, reports stamped with the words ‘official’ or ‘confidential’; nearly 200 videotapes; and more than 2,256 written petitions.  The accused called the trial ‘megalomaniacal’, while the chief prosecutor spoke of putting together ‘a library for posterity’.  In her desire to do justice to all the victims, the chief prosecutor produced a very wide-ranging indictment, which resulted in a cumbersome trial.  The underlying gambit was to paint the man in the dock as the ‘chief architect’ of ten years of war.

A Series of Challenges

The prosecution had to face three major challenges.  The first was that of proving that Belgrade was behind the massacres committed by the Serbs in the neighbouring republics of Croatia and Bosnia, which had become independent in 1991 and 1992 respectively. The second concerned the status of the accused at the time when the crimes were committed: he was then only President of Serbia and therefore had no legal authority over the army or over financial matters, which were the responsibility of the leaders of the Federal Republic of Yugoslavia (which encompassed Serbia and Montenegro).  The third and final difficulty was that of explaining the motives of the accused: how to discover and prove an individual’s ‘private’ motives when they are not based on classic ideological models?  On several occasions, and despite repeated statements, the trial's lead prosecutor Geoffrey Nice had to confront the judges’ questions on this point, without apparently – I say ‘apparently’, since what they really thought can no longer be known now that the case is closed – succeeding in convincing them. 

When the trial began on February 12th 2002, Carla del Ponte spoke of it in these words: ‘Beyond the nationalist pretext and the horror of ethnic cleansing, behind the grandiloquent rhetoric and the hackneyed phrases he used, the search for power is what motivated Slobodan Milosevic.  They were not his personal convictions, even less patriotism or honour, or even racism or xenophobia, which inspired the accused, but the quest for power, and personal power at that.’  When, in August 2005, the ultra-nationalist Vojislav Seselj, himself accused of crimes against humanity, claimed in the witness box that he was opposed to Slobodan Milosevic, because the latter rejected the idelogical plan for a ‘Great Serbia’, the prosecutor was almost ordered by the three judges to explain himself.  Geoffrey Nice responded by talking about the idea of a ‘Greater Serbia’, which would have brought ‘all Serbs together in a single State’.  Would this shade of meaning have counted in the final verdict?  That question cannot now be answered. 

Slobodan Milosevic never denied giving logistical and financial support to Serb separatists in Bosnia and Croatia, although he claimed that the support was ‘humanitarian’.  ‘Who else would have helped you?’ he asked Milan Babic, the former leader of the Croatian Serbs, who was giving evidence against him.  ‘Nobody,’ Babic replied.  (Milan Babic, who pleaded guilty, had already been sentenced to 13 years imprisonment.  He hanged himself in  his cell in The Hague on March 5, 2006).   

Did He Control the Killers?

On the other hand, Slobodan Milosevic always denied the involvement of the Yugoslav army or police.  He also denied any link between Belgrade and paramilitary groups such as Arkan’s Tigers, Milan Lukic’s White Eagles, Seselj’s Chetniks and Legija’s Red Berets.  Questioned by Geoffrey Nice as a witness for the prosecution, the Serb-Australian fighter Captain Dragan gave a lively account of how he had created various paramilitary groups and set up a training camp with the help of Jovica Stanisic, head of the Serbian Secret Service, and Franko Simatovic, the service’s commander of special operations.  Questioned by Slobodan Milosevic, he changed his story and boasted that he had both created and been sole commander of an independent paramilitary group.   

Which part of his testimony would the judges have accepted? And would they have finally admitted as evidence the video showing members of another paramilitary group, the Scorpions, executing with consummate  cynicism two young Bosnians in the Srebrenica region?  The showing of this footage on June 1, 2005 led to the arrest and trial in Belgrade of five of these men, including the head of the group, Slobodan Medic.  The film showed the Scorpions in Serbia, being blessed by an Orthodox priest in Vojvodina, as well as their foul deeds in Bosnia.  

Many witnesses made the point that, by setting up a parallel government, Slobodan Milosevic led the Federal Republic of Yugoslavia by proxy.  But most of them qualified their statements by saying that Slobodan Milosevic did not really lead or control events, he merely influenced them.  Would this qualification have inclined the judges towards the accused, given that the tribunal’s requirements for evidence were very strict?  Another question that cannot be answered.  The prosecution would have needed written evidence, such as the minutes of meetings of the government or the Supreme Defence Council.  For four years, Carla del Ponte struggled with Belgrade, but the evidence arrived in dribs and drabs, and only after being ‘carefully selected’.  The prosecution was never able to obtain the records of the 30th and 40th sections of the Yugoslav People’s Army, created specially for the war: records which would have given details of personnel and might have demonstrated that the senior officers involved first in the Croatian, then in the Bosnian operations had been appointed and promoted, as well as paid, by Belgrade. 

Genocide: A Charge Too Far?

Regarding the charges over Kosovo, the prosecutor had less trouble establishing the facts.  By the time of these alleged crimes, Milosevic was president of the federal republic of Yugoslavia and thus had legal authority over the army and the police.  He was the commander in chief and was therefore legally accountable.  Milosevic's defence was that the state was obliged to take action in response to the terrorist campaign of the Kosovo Liberation Army.  He said that responsibility for the massive displacement of Kosovar Albanians during the Kosovo war of 1999 lay with the NATO bombing attacks; he also presented evidence about the people who had been killed by NATO’s bombs.  The judges appeared willing to consider this argument and asked the amicus curiae (a court-appointed special advisor) Timothy McCormack to give his opinion on legality of NATO’s actions.  In addition, the question of whether Milosevic was legally responsible for the January 1999 Racak massacre also seemed to be in the balance.

Last but not least, what would the judges have said about the controversial charge of genocide?  The prosecution’s evidence for Slobodan Milosevic’s links with the massacre in Srebrenica and his role in plans for wiping out Bosnia’s Muslims was flimsy.  Moreover, the ruling in the Krstic case, which established that the Srebrenica killings amounted to genocide, is still very much in dispute and it is by no means certain that it would have been taken as a precedent in the Milosevic trial.  Right at the start of the trial, the prosecutor made a telling comment on this subject: a crime against humanity, he said, is no less serious than genocide. 

The four-year trial was not a failure, far from it.  The investigation, the methods used to find evidence and analyse the way the defendants’ ‘joint criminal enterprise’ functioned, will be used in other trials.  In addition, the records of the case will provide rich pickings for historians. 

Verdict on the Trial

In fact Carla del Ponte always saw the trial in explicitly historical terms. ‘The story of the break-up of the former Yugoslavia and its age-old fratricidal conflicts is a complex process which will require many hands to write it,’ she said four years ago.  ‘This tribunal will write only one chapter, the most bloody one, the most heartbreaking one as well; the chapter of individual responsibility of the perpetrators of serious violations of international humanitarian law. It is up to other courts to make the moral, historical, or even psychological diagnosis of the accused and to analyse the social, economic, and political dynamic which constituted the basic fabric of the crimes that we are going to consider. The apparently inevitable concatenation of fear and hatred, political manipulation, the sinister role of some of the media but also the heroism of the resistance and those who opposed him throughout the former Yugoslavia, the survival of dignity and civil spirit and humanity, all of these are mechanisms which must be analysed, dissected, and explained.’ 

Whatever the circumstances of Slobodan Milosevic’s death, his untimely demise makes it seem in a curious way as though the accused is thumbing his nose at justice.  In 2000, the writer Vidoslav Stevanovic, the author of Milosevic, an Epitaph predicted the role he was destined to play: ‘that of the culprit, the scapegoat.  Yesterday everyone…projected their fantasies onto Milosevic. Tomorrow everyone…will lay at this man’s door their shame, their crimes, their fears, their hatreds, their lives, their tarnished dreams, their urges.  Under the name of Milosevic, they will bury the refuse of an era, the sorrow of a nation, the poverty of a mindset.  Then, however pessimistic some people are, we will be able to start a new life, a more humane life than the one we have today.  Or at least less inhumane.’

--Translated by Howard Curtis. 

Stéphanie Maupas writes from The Hague for Le Monde.

Related chapters from Crimes of War: What the Public Should Know:

Bosnia

Genocide

Persecutions on Political, Racial or Religious Grounds

Related Links:

International Criminal Tribunal for the Former Yugoslavia

Coalition for International Justice

Milosevic Was Not the Only One in the Court to be Cheated of a Verdict

By Steven Kay, QC,

The Times, March 21, 2006

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