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March 13, 2002 The
Milosevic Trial - Part I It wasn’t long ago that the prospect of seeing Slobodan Milosevic in the dock in an international war crimes court seemed a utopian impossibility. So when the long awaited trial of the former President of the Federal Republic of Yugoslavia began on February 12, millions who had been touched by the Balkan wars of the last decade waited in anticipation to see the man many believe to be the architect of the bloodshed. They could hardly have been pleased when in the first month of the trial Milosevic regularly turned the courtroom into a mockery in much the same way that he once manipulated noted statesmen in his war games. The former Serbian strongman refused to recognize the UN Court, disdainfully glanced at his watch during the proceedings as if he were bored, and dismissively addressed the presiding judge, Justice Richard May, as "Mr. May." One of the most disturbing aspects of the trial to date has been the Prosecution’s struggle to link Milosevic to the crimes that destroyed so many lives. Nekibe Kelmendi, a judge who served as the minister of justice in Kosovo after the war, watched the proceedings from the spectator’s gallery, her skin pale and taut. Her husband, a prominent human rights lawyer and their two sons were killed after being arrested by Serbian police. "I feel sick to my stomach listening to all his lies," she told the New York Times. "When I look at Milosevic, I see a killer." After Milosevic refused to enter a plea or appoint a lawyer because he said he didn’t recognize the Court, the Trial Chamber entered a not guilty plea for him. Then, when Milosevic refused to appoint a defense team, again because he didn’t recognize the Court, the Trial Chamber appointed three amici curiae – friend of the court – lawyers to act on his behalf. Once the trial began however, Milosevic all but shunned the amici lawyers and began representing himself, a process that allows him to personally cross-examine the witnesses testifying against him. The first three weeks of proceedings have featured chilling testimony of massacre witnesses and menacing but sometimes skillful cross-examination from Milosevic. Because Milosevic is defending himself and the Tribunal wants to not only be fair, but be perceived as fair by those listening to the trial proceedings being broadcast across the globe, it has allowed him greater rein to cross-examine witnesses than would normally be permitted. This has caused some concern as to whether Milosevic is being allowed to humiliate and terrorize those testifying against him, including his alleged victims. The complex trial of a man many believe was the chief instigator of a decade of war is expected to last some two years. It will feature a myriad of documents, photographs, often-graphic videotapes showing mangled bodies and mass graves, and intercepted audio communications. It will also feature hundreds of witnesses ranging from massacre survivors to government officials. Milosevic has vowed to call former US President Bill Clinton, former German Chancellor Helmut Kohl, French President Jacques Chirac, former US Secretary of State Madeleine Albright, and former US negotiator, Richard Holbrooke to testify at the trial. Milosevic is accused of 66 counts of war crimes, crimes against humanity, and genocide committed since 1991 in Kosovo, Bosnia, and Croatia during armed conflicts in the territory of the former Yugoslavia. Initially, the Trial Chamber at the International Criminal Tribunal for the former Yugoslavia – which consists of three judges, the presiding Justice May of the United Kingdom, Patrick Robinson from Jamaica, and O-gon Kwon of Korea – planned on having two separate trials for the Kosovo and the Bosnia and Croatia indictments. However, the Prosecution argued that the three indictments were all part of Milosevic’s master plan to create an ethnically pure Greater Serbia. The Appeals Chamber found that the acts alleged in the three indictments "formed part of the same transaction" and ordered that the indictments be joined and tried together in a single trial. All three indictments allege that the former head of state was a leader of a joint criminal enterprise with an objective of making Serbs the dominant group in Yugoslavia by exterminating, confining, deporting, sexually assaulting, subjugating, and otherwise terrorizing and persecuting non-Serbs in the territories. Milosevic is charged both with "individual responsibility" through his participation in a joint criminal enterprise as well as "superior responsibility," meaning that he allegedly knew or had reason to know that the crimes were being committed by subordinates and he failed to take necessary and reasonable measures to prevent or punish the crimes. The charges – individual responsibility and superior responsibility – are spelled out under Articles 7(1) and 7(3), respectively, of the Tribunal’s Statute. However, in two prior cases before the ICTY – the Krstic Judgement and the Kvocka et al. Judgement – the Trial Chamber found that in the context of a joint criminal enterprise, once individual responsibility is determined, superior responsibility need not be decided because it is subsumed within individual responsibility. Thus, if Milosevic is found to have participated in a joint criminal enterprise, he apparently cannot also be found guilty of superior responsibility for the same crimes. While the mutual exclusivity of the two charges will not impact the sentence the judges could possibly hand down, it means that Milosevic’s trial is not likely to develop the law of superior responsibility. In the opening statements of the trial, Carla Del Ponte, the Tribunal’s Chief Prosecutor, accused Milosevic of responsibility for crimes that left 200,000 dead out of a pure lust for power. "Some of the incidents revealed an almost medieval savagery and a calculated cruelty that went beyond the bounds of legitimate warfare," she said. However, she emphasized that the trial of Milosevic in no way was intended to impose collective guilt on the Serbian people as a whole. "The accused in this case, as in all cases before this tribunal, is charged as an individual: he is prosecuted on the basis of his individual criminal responsibility. No State or organization is on trial here today: the indictments do not accuse an entire people of being collectively guilty of the crimes, even the crime of genocide. It may be tempting to generalize when dealing with the conduct of leaders at the highest level, but that is an error that must be avoided. Collective guilt forms no part of the prosecution case, it is not the law of this Tribunal, and I make it clear that I reject the very notion." Milosevic, by contrast, endeavored to discredit the Tribunal, dismissing it as a political body predisposed to rule against him. He also claimed that putting him on trial was tantamount to trying his people: "The prosecution is accusing the population of supporting me, and let me say that my behavior here is an expression of the will of the citizens as well, the will of the people. The prosecutor is accusing the army and the police, the volunteers and the territorial defense. She has accused Serbia and all Serbs who supported me in Serbia and those Serbs who supported me outside of Serbia -- and all the people who support me in Serbia to this day." Once past the opening statements, the Prosecution outlined the strategy it held in secrecy in nearly three years of preparation. Del Ponte disclosed that she would rely in part on the testimony of close associates of Milosevic to prove that he was part of a joint criminal enterprise established to kill non-Serbs or cleanse them from the territory. Del Ponte indicated that she would argue that Milosevic's spoken words – and how they were interpreted by subordinates – would demonstrate his intent to drive out or eradicate non-Serbs in all three territories. When the Prosecution began calling on witnesses, it began focusing exclusively on the Kosovo indictment. The testimony of the first witness was intended to show that Milosevic knew or should have known of the atrocities his underlings were committing in Kosovo, but did nothing to stop them. In testimony, Mahmut Bakalli, a Kosovo Albanian who once was that province's Communist leader, said he had warned Milosevic about police abuses in Kosovo at two meetings in mid-1998. He testified that he informed Milosevic about how a police and army raid on the home of a Kosovo Liberation Army member had left dozens of civilians, including women and children, dead. However, the following day, on February 19, Milosevic adeptly cross-examined Bakalli. Milosevic conceded that Bakalli had told him about the deaths, then asked: "Do you know that the police surrounded the house to arrest them, and that they did not want to surrender themselves to the police and that they shot at the policemen? Do you know that during those two hours it was the women and children that came out of the house mostly?" Bakalli answered, "I don't know. But I do know that women and children were murdered in the house and around the house." "The ones that came out of the house certainly weren't killed," Milosevic responded. Central to Milosevic’s defense has been to constantly repeat the assertion that it was not Serbian forces who drove Albanians out of Yugoslavia, but rather NATO’s 1999 bombing campaign that killed hundreds of innocent civilians and destroyed a large number of non-military properties. In several instances, this has proven to be a shrewd tactic. On February 19, the prosecution called a Kosovar Albanian named Fehim Elshani, a 67-year-old retired accountant, to the stand. Elshani told the court how seven people were killed in his yard and two in his brother’s when Serb forces moved into his village to loot and burn it. However, the prosecution's somewhat disorganized questioning left unclear exactly who had bombed Elshani’s compound and at one point in the testimony, Elshani mentioned that two explosions were from "some powerful material, an explosion as if from an airplane." For the first time in his defense, Milosevic allowed one of his amicus lawyers to cross-examine the witness. The lawyer, Branislav Tapuskovic, took advantage of the opening, and suggested that the bombs had been dropped by NATO. Elshani attempted to clarify the issue by saying that there was Cyrillic writing on the bomb shards. During the same cross-examination, Tapuskovic also asked Elshani a question that forced the witness to reveal that one of his sons was a member of the Kosovo Liberation Army. At times, Milosevic has proven to be a capable defense attorney, able to undermine at least in part the credibility of witnesses or to get them to recant a previous position. For example, on February 26, a 32-year-old Albanian woman, Ajmoni Behrami, testified that in March 1999, Serbian forces came into her village, Izbica, and forced its women and children to march for six days, escorted by police officers and soldiers, to Albania. She said Serbian forces executed more than 100 men and burned two paralyzed women. Along the way, she said, she was separated from her sister, who was carrying Behrami’s six-month-old son. Her son later died of starvation because she was unable to feed him. Milosevic began his cross-examination by apologizing to Behrami. "I am sorry that the witness lost a baby," he said, "but I have to ask her a few questions." Behrami was reluctant to discuss the Kosovo Liberation Army. She originally denied to a prosecutor that her husband had been with the group, but later said he had been a member at some point before his death. Milosevic has proved he can be a formidable foe in the courtroom when he turns his considerable energies toward attacking the Prosecution, the case against him, the legitimacy of the Court, and NATO, using every opportunity during cross-examination to attack instead of to defend himself. But increasingly, the Judges are marshalling the leeway initially granted to Milosevic, warning him again and again to cross-examine the witness and not go off on tangents to present his case, which he’ll be allowed to present in due course. As Milosevic’s free-rein is finally corralled, he appears to be stumbling and the amici lawyers are being afforded a greater role in defending him. The first few weeks of trial have shown that there is still a long way to go before those who were victimized by the wars in the Balkans get a sense that justice is being served. Kelly Askin, JD and PhD (law), is an Independent Consultant and a Fellow at the Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University. This is the first in a series of regular reports on the Milosevic trial. Related chapters from Crimes of War: What the Public Should Know Bosnia Related Links How
Coder Cornered Milosevic ICTY
home page Summaries of the Charges Video
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