Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic 9780822391791

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twi light of i m pu n i t y

twilight of impunity The War Crimes Trial of Slobodan Milosevic

j u d i T h a r M aT Ta

Duke university Press

Durham anD LonDon

2 0 10

© 2010 Duke University Press All rights reserved. Printed in the United States of America on acid-free paper ♾ Designed by Heather Hensley Typeset in Warnock Pro by Tseng Information Systems, Inc. Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book.

For M i r k o K l a r i n , who has made his life’s work the search for truth and justice in the former Yugoslavia. Without Mirko, who first suggested an international war crimes tribunal, there would be no ICTY. Without Mirko’s inspiration and support, I could never have written this book. For my partner, K ate T i t u s , whose unwavering support and belief were essential to the process. And for J u d g e S i r R i c h a r d M ay , who gave his all in the service of justice.

Contents

ix

P r e fa c e  

A Personal Note

xiii

Acknowledgments

xvii

Note on Usage and Conventions

xxi

A b b r e v i at i o n s

xxv

Cast of Characters

1

Introduction

10

Chapter 1 

Opening Statements

25

Chapter 2 

Milosevic Was Warned

46

Chapter 3 

The Lead-up to War

75

Chapter 4 

War in Kosova

95

Chapter 5 

Massacre and Cover-up

117

Chapter 6 

Milosevic’s Rise to Power

148

Chapter 7 

The Exercise of (De Facto) Power

182

Chapter 8 

War in Croatia and Attempts at Peace

212

Chapter 9 

War Comes to Bosnia

240

C h a p t e r 10  

Concentration Camps and Safe Areas

284

C h a p t e r 11  

Genocide

322

C h a p t e r 12  

Interregnum

345

C h a p t e r 13  

The World According to Milosevic

370

C h a p t e r 14  

Milosevic’s Loyalists

393

C h a p t e r 15  

Croatia and Bosnia: A Case of Self-Defense?

430

C h a p t e r 16  

Conclusions and Recommendations

449

Afterword

451

App e n d i x I  

457

App e n d i x II  

459

App e n d i x III  

471

Notes

517

Bibliography

523

Index

Law of the Tribunal List of Defense Witnesses Chronology

P r e fa c e  A P e r s o n a l N o t e

For nearly three years I sat in a courtroom in The Hague, observing what was billed as “the trial of the century.” Slobodan Milosevic was accused of sixtysix counts of war crimes, crimes against humanity, and genocide for his role in the decade-long conflict that tore Yugoslavia apart, leaving over 100,000 people dead, millions displaced, and a way of life destroyed. His path to the courtroom was one of power, carnage, and hubris brought low. Mine evolved over a five-year odyssey that began in Belgrade in 1997, when Milosevic was still Serbia’s president. I was sent by the American Bar Association’s Central and East European Law Initiative (ABA/CEELI) to assist a group of dissident judges establish an independent judges’ association and to support other rule-of-law efforts. A year after fighting ended in Bosnia and Croatia, Milosevic’s power was shaken by three months of Serbian demonstrations against his autocratic rule. After the democratic opposition squandered its victory through infighting, Milosevic reasserted authority by fomenting yet another war to drive the majority Albanian population out of Kosova. When NATO began bombing Serbia and Montenegro and hundreds of thousands of refugees poured over the borders, I left for Macedonia to document what was happening. The stories we gathered from refugees—of rape, murder, beatings, property destruction, looting, and forced deportation—formed part of the data used by the ICTY to indict and prosecute Slobodan Milosevic. When the war ended and Serb forces withdrew from Kosova, I returned to work in Montenegro, then went home to the United States for a respite that included my mother’s last year of life and her death. In the meantime the Serbian people ousted Milosevic from power and, one year later, their new, reform-minded prime minister, Zoran Djindjic, orchestrated his handover to the ICTY, responding to pressure from the United States. Milosevic would stand trial for the most grievous crimes associated with his ten-year

reign of destruction. When the Coalition for International Justice, a human rights organization in Washington, offered me a front-row seat at his trial, I jumped at the chance to see law applied to the man who had used it as a tool to distort reality at great cost to people and to the rule of law itself. This book is my account of the trial, from the beginning to its bitter end over four years later. It is not the definitive trial record, nor entirely objective. Who we are—our values, interpretation, and worldview—determines what we see. My years in the former Yugoslavia inform my point of view. The trial of Slobodan Milosevic is more personal for my having lived under his rule and seen the havoc he made of people’s lives—Serbs as well as Montenegrins, Bosniaks, Kosovars, and Croats, friends and colleagues as well as strangers. In March 1998 I sat on a couch in Pristina, Kosova, looking at photographs of massacred civilians, men, women, and children, some horribly disfigured from being shot at close range. At a Women in Black conference I listened to Bosnian women from Gorazde describe how they survived a multiyear siege and bombardment of their city, Muslims and Serbs looking out for one another.1 In Belgrade I walked past a legless veteran who was no longer of any use to the army that left him to beg on the streets for survival. A friend in Montenegro told me of a woman badly beaten by her husband, who threatened to kill her when she confronted him about sexual assaults he had committed during the war. I saw the bullet-ridden skeletons of buildings and houses in Sarajevo, Vukovar, Mostar, and Dubrovnik; the yellow ribbons marking off areas still mined years after the war; soldiers carrying Kalishnikovs running in formation through the streets of Belgrade, just as they had walked the streets of Pristina to intimidate and frighten; UN tanks in the narrow streets of Sarajevo; people who feared crossing a border with the wrong license plate, or speaking the wrong dialect; the vacant eyes of those who had seen too much. On and on the images and words float in my memory. They brought me to The Hague, where people do not shoot guns to celebrate. Yet this placid Dutch city housed men accused of responsibility for the most heinous crimes imaginable. Among them was Slobodan Milosevic, for three years a man I would see more often than my partner, friends, and loved ones. I watched and listened as the famous and the common folk took the stand to describe how he had destroyed Yugoslavia and its tolerant, multiethnic way of life. The survivors confronted him with their very personal losses—of family, friends, and communities, of wholeness and peace of mind, of trust in their neighbors and humanity. Milosevic watched it all with no apparent remorse, sympathy, or compassion. He brought his yes-men (and a few women) to play the parts he had written for them, describing a fantasy    P r e fa c e

world where Serbs were always and only victims, never causing harm. Milosevic attempted to manipulate and undermine the trial, at the same time that he used it to further the “myth of Milosevic,” which he himself had created. And then he died, robbing many, including me, of some hoped-for resolution. It would have to be enough that he spent his last years confined to a jail cell and a courtroom, compelled to listen as his victims recounted the suffering and loss that his obsession with power had caused. It is more than the vast majority of dictators ever face. And it is an important marker on the road to ending the impunity of powerful men who destroy hundreds of thousands of lives as if they were brushing off a fly. Is it the twilight of impunity, as the title of this book suggests, or is that merely a hope? Only time will tell, but I offer this book in an attempt to tip the scales a little more toward justice. Cambridge, Massachusetts March 2009

A P e r s o n a l N o t e   xi

Acknowledgments

Above all, I wish to thank Valerie Milholland, senior editor at Duke University Press, who believed in this project and gave me time to see it through, despite numerous interruptions. Thanks to Louis Sell and Shaun Byrnes for opening the door for me, to my readers, those known (Lisa DiCaprio, Dermot Groome, Ann Hubard, Kevin Kish, Mirko Klarin, Jo Larsen, Kate Titus, and Taylor West) and unknown, for comments and suggestions that greatly improved the manuscript. A special thanks to the excellent managing editor at Duke, Fred Kameny, for his command of the English language and structural advice that produced a polished manuscript. A special thank-you to Nina Bang-Jensen and the folks at the Coalition for International Justice (Stephanie Frease and Eric Witte) for giving me the opportunity to observe and comment on the trial and insuring the wherewithal to do so, at significant expenditure of effort and stress. To Mary Greer for showing me the ropes and providing support through difficult patches. To my summer assistants, Kevin Kish and Julie Heaner Plavsic, who lightened my load and provided collegial support. To Edgar Chen, who completed the task with excellence. And to Andraś Riedlmayer for sharing his expertise and providing encouragement. Thank-yous are also due to John Heffernan, Nick Mansfield, and Mark Ellis, who created the Kosova War Crimes Documentation Project in Macedonia and supported me in carrying it out. And to Terry Rogers, without whose excellent organizational skills the project would never have happened. Thank you also to my staff, whose courage and compassion made the project a success: Aferdita Imeri, Edmond Zhaku, Sebiha Ahmeti, Vlora Mehmeti, Ilyriana, Fisnik Stavileci, Valon, Emily Edson, Steve Kosokoff, and Jim Hodes. I am grateful for the journalists who continued covering the four-year trial, convincing editors that it remained newsworthy despite its length, and

for those who attended regularly, despite its evocation of human tragedy at times almost too much to bear. To Mirko Klarin and the crew at SENSE, who did more than anyone to present a coherent view of the ICTY and its trials for those throughout the former Yugoslavia, and especially to Violeta ChurkinWillemsen and Mina Vidakovic for their tireless work, friendship, and support. Journalists from all parts of the former Yugoslavia deserve appreciation for the sacrifices they made to attend the trial, overcoming the added stress of visa and financial difficulties. I honor Emir Suljagic, journalist and survivor of Srebrenica, for his courage in covering a trial that brought back traumatic memories, and for the voice he gave to victims and survivors who could not be there. Marlise Simons of the New York Times deserves particular mention for her informed reporting, courage in the face of unwarranted criticism, and advice to a neophyte “reporter.” I am grateful to Thomas Verfuss with the Dutch News Agency ANP for sharing his experience and knowledge of international humanitarian law and for his leadership in seeking fairness for Balkan journalists. The Institute for War and Peace Reporting and its reporters deserve recognition for insightful and sustained coverage of the ICTY, and appreciation for archiving CIJ’s articles on their web site (www.iwpr .net). Thanks also to my respected colleagues and friends Anthony Deutsch of the Associated Press and Heikelina Verrijn-Stuart for her insightful legal analysis. A special thank-you to Julija Bogoeva, who crosses categories from journalist to Yugoslav expert to friend. Thank you to my Dutch family (Jacqueline Whitlau, Jan Oudershoorn, their son, Yolt, and mother, Jenny), whose good sense, humor, and compassion got me through many a rough day. To Nancy Ramsey and Rusty Schweikert for their friendship, wit, and concern for justice. My gratitude to Warren Walker, Dorothee Roosebaum, and the book/play reading group for reminding me that there is a lighter side of life. Special blessings to Sara SchifferSharratt, who picked me up and put me back together more times than I can count. And to Pat Noonan, whose visits reassured and centered me. I am grateful to all who encouraged me to undertake this project, among them Kelly Askin, Robert Autrey, Nina Bang-Jensen, Jill Benderly, Rich Carter, Jean Cauthorn, Lois Courtney, Richard Dicker, Bernardine Dohrn, Sharyn Hedbloom, Margaret Frimoth, Patrice Fletcher, Mary Forst, Tina Frost, Barbara Gee, John Heffernan, Cindy Joseph, Steve Kosokoff, Mark Larsen, Julie Mertus, Norm and Nancy Monroe, Elizabeth Odio Benitez, Erna Paris, Tea and Dragan Prelevic, Andraś Riedlmayer, Amy Ross, Sara SchifferSharratt, Norm Sepenuk, Marlise Simons, Merri Souther-Wyatt, Chuck Sudetic, Stacy Sullivan, Valerie Thom, Kathleen Young, Ana Uzelac, Heikelina xiv   A c k n o w l e d g m e n t s

Verrijn-Stuart, Joella Werlin, and all the folks at Oregon Action (RuthAlice Anderson, Joanne Bowman, Johnnie Gage, Joe Mahoney, Steve Mayes, Mallory Pratt, Rich Rohde, and Geri Washington). A very special thank-you to Terry Rogers for her support, humor, common sense, and friendship. Thank you to Yugoslav activists and friends who taught me about the region and inspired me with their courage: Nazlie Bala, Jill Benderly, Sonja Biserko, Nebojsa Cagarovic, Srdjan Darmanovic, Olja Dimic, Vojin Dimitrijevic, Vladan Djuranovic, Sonja Elezovic, Bogdan Ivanisevic, Aleksa Ivanovic, Natasa Kandic, Biljana Kovacavic-Vuco, Sonja Licht, Stefan Lilic, Aleksandar Lojpur, Lepa Mladjenovic, Branko Nedic, Radovan and Vesna NikolicRistanovic, Branimir Plese, Vesna Ratkovic, Igbala Rugova, Matilda and Anita Stojanovic, Ivana Stevanovic, Gordana Walker, Hilda Zakrajsek, and the journalists at Vreme, B-92, and Monitor. To the women and men of Women in Black Belgrade, the conscience of Serbia, who courageously transcended nationality throughout the wars. To Nick Mansfield and Julie Heaner Plavsic for their incredible support throughout my three difficult years in a chaotic and distressed region. And to Jadranka Mrkela, my first language tutor and friend. With gratitude to my family whose love and support sustains me: my sister Jo Larsen, brother-in-law Bob Larsen, niece Sheila and her husband Chuck Winter, grandnieces Valerie and Sarah Winter, and especially my grandnephew Keith Tharp, who respected my closed door and focus on life’s dark side. To Donna, Ron, Ellen, and John Titus, Sarah and Steven Milonas, Ann, Emily, and Joanna Harrison, and Peter Cote, who have drawn me into their family with support and love. Blessings to Nan Whitaker-Emrich, who gave her wisdom, compassion, and generosity to my recovery. In loving memory of my mother, Marguerite Filsinger Armatta, and father, Joseph Albert Armatta, whose struggles directed my path. To my grandmother Constantine Armatta for her unconditional love, and to Kate’s grandmother Frieda Marion, for her encouragement, example, and love. My deepest appreciation for the many people who have dedicated their time and energy—often at great personal cost—to this worthy experiment in international justice: the trial judges, in particular Judges Sir Richard May, O-Gun Kwon, Patrick Robinson, and Iain Bonomy; the appellate chamber, including the superb legal minds of Judges David Hunt and Wolfgang Schomberg; Chief Prosecutor Carla Del Ponte; the prosecution team, including those behind the scenes; the amici curiae whose professional excellence enhanced the trial; the Association of Defence Counsel, and the lawyers who fought for equal treatment for the accused; Registry and Court Clerks and A c k n o w l e d g m e n t s   xv

personnel; the overtaxed interpreters; those wonderfully helpful folks in the ICTY Press and Information Office; and the UN guards who performed their jobs with compassion and humor. Finally, my deepest love, gratitude, and admiration to Kate, my partner of seventeen years, who has supported me along a bumpy path with love, humor, and courage.

xvi   A c k n o w l e d g m e n t s

Note on Usage and Conventions

Pronunciation

For the sake of simplicity, I have omitted accents and diacritical markings from personal, institutional, and place names, though accurate pronunciation requires them. To avoid an excess of ethnocentrism the reader may wish to consider the following imprecise rules: “c,” depending on the diacritical or accent, is pronounced “ch,” “tch,” or “ts” “dj” is pronounced “j,” as in “jam” or “jail” “i” is pronounced like “ee” in free” “j” is pronounced like “y” in “you” “s” is pronounced “sh” when it has an accent, otherwise “s” as in sailor “z” with an accent is pronounced “zh,” as in “Asia.” For example, “Milosevic” appears in the text without its diacriticals. In slightly Anglicized pronunciation it is “meel AW sha veech.” As a rule, emphasis is placed on the third to last syllable: “SLO bo dan.” Spelling and Naming

I have used the Anglicized spelling of some words where it is more common, such as Ustasha for Ustashe and Yugoslavia for Jugoslavija. The SerboCroatian language is designated B/C/S (Bosnian/Croatian/Serbian), reflecting ICTY usage for the dominant language in Bosnia, Croatia, Serbia, and Montenegro. Though English speakers are most familiar with the Serbian spelling Kosovo, I have used the Albanian Kosova out of respect for its status as an independent state.* Kosova Albanians are referred to thus, or as *On 17 February 2008 Kosova unilaterally declared independence. The United Nations does not recognize Kosova. Serbia considers that the declaration of independence is illegal and violates Serbian sovereignty. Sixty-two nations, including the United States, have recognized Kosova’s independence, with thirteen more poised to do so as of August 2009.

Kosovars. Serbs in Kosova are identified as Kosovo Serbs according to their preference. Again for simplicity, I have abbreviated Bosnia-Herzegovina as Bosnia. For the most part the major ethnic groups in Bosnia are referred to as Bosniaks, Bosnian Croats, and Bosnian Serbs. While many Bosniaks are Muslim, a substantial number are not. Only where appropriate in context or in quotations do I use the term “Bosnian Muslims.” I have retained the capitalization used in documents. A tribunal is a special kind of court, and therefore I have often used the term “court” to designate it, particularly when referring to a trial chamber. The Appeals Chamber is also called “the appellate court,” “the appeals panel,” or “the higher court.” While I have tried to identify with some specificity what is meant by “the international community,” at times the original source is unclear. Milosevic created the Federal Republic of Yugoslavia (FRY), consisting of Serbia and Montenegro, on the breakup of the Socialist Federal Republic of Yugoslavia (SFRY) in 1992. The FRY existed legally until 2003, when it was reconstituted as the State Union of Serbia and Montenegro. That entity dissolved in 2006 when Montenegro became an independent state. I often refer to “the government in Belgrade.” Some of the participants call this the “Yugoslav” government by way of shorthand, but in reality Yugoslavia ceased to exist in 1991. Sources

To keep this book to a manageable length, I have not cited to the trial transcripts. Readers who wish to see the transcripts are referred to the list of defense witnesses and the dates on which they testified in appendix II. A chronological list of prosecution witnesses is available on the ICTY website (www.icty.org). Structure

For the most part I have followed the chronology of the trial rather than the chronology of events in Yugoslavia before and during the wars of the 1990s, though I do not write about witnesses in the order of their appearance. As a result, the book, like the trial, begins with Kosova, last of the Balkan wars of the 1990s. Because the prosecution’s Kosova case was more thoroughly prepared for trial than its Croatia and Bosnia cases, the court directed it to begin with it. This was appropriate in that Milosevic’s manipulations leading to war and Yugoslav dissolution began in Kosova. At times I have included defense evidence with prosecution evidence on the same subject. The main prosecuxviii  N o t e o n U s a g e a n d C o n v e n t i o n s

tion and defense cases are separate, however. Readers are encouraged to use the timeline in appendix III to assist in understanding the complex events that brought Milosevic before the ICTY. Caveat on Proving Facts

The decade of conflicts in the former Yugoslavia was widely reported by international media. Yet certain “facts” that are generally accepted must still be proved in court if they relate to the charges brought against the accused. While the extent of Milosevic’s power during this period is widely known, the prosecution had to prove it to support the charge that he ordered or directed criminal activity or had legal or actual power over those who committed the crimes. When readers open this book they enter a realm where legal rules, not common sense or common knowledge, apply. I have attempted to provide guidance in this realm, but caution the reader to be aware that the trial is governed by more or less precise legal rules.

N o t e o n U s a g e a n d C o n v e n t i o n s   xix

A b b r e v i at i o n s

abih or arbih Army of the Republic of Bosnia and Herzegovina APC

Armored personnel carrier

ARSK

Army of the Republic of Serbian Krajina (also SVK)

B/C/S

Bosnian/Croatian/Serbian (dominant language in Bosnia, Croatia, Serbia, and Montenegro)

DS

Democratic Party (Zoran Djindjic’s party)

EC

European Community

ECMM

European Community Monitoring Mission

EU

European Union

FRY

Federal Republic of Yugoslavia

FYROM

Former Yugoslav Republic of Macedonia

HDZ

Hrvatska Demokratska Zajednica / Croatian Democratic Union

HV

Croatian Army

HVO

Croatian Defense Council (main defense force of Herzeg-Bosna)

ICC

International Criminal Court

ICFY

International Conference on the Former Yugoslavia

ICJ

International Court of Justice (World Court)

ICRC

International Committee for the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the Former Yugoslavia

IDP

Internally displaced person

IFOR

NATO-led Implementation Force in Bosnia

JATD

Anti-Terrorist Operations Unit of Serbian MUP

JNA

Yugoslav People’s Army

JSO

Special Operations Unit of the Serbian State Security Service, referred to colloquially as the Red Berets or “Frenki’s”

JUL

United Left Wing of Yugoslavia (Mira Markovic’s party)

KDOM

Kosovo Diplomatic Observer Mission

KFOR

NATO-led peace force in Kosova

KLA (UCK)

Kosova Liberation Army

KOS/KOG

Counter-Intelligence Service of JNA

KVM

Kosovo Verification Mission

LDK

Democratic League of Kosova (Ibrahim Rugova’s party)

MUP

Ministry of the Interior, i.e. the police

NAM

Non-Aligned Movement

NATO

North Atlantic Treaty Organization

OSCE

Organization for Security and Cooperation in Europe

otp

Office of the Prosecutor

PJP

Serbian Special Police Units

PTT

Post, Telegraph, and Telephone

RDB

Public Security Division of the Ministry of the Interior of Serbia

RS

Republika Srpska

RSK

Republic of Serb Krajina

RTS

Radio Television Serbia

SAJ

Serbian MUP Special Anti-Terrorist Units

SANU

Serbian Academy of Arts and Sciences

SAO

Serbian Autonomous District

SBWS

Slavonia, Baranja and Western Srem

SCG

Government of Serbia and Montenegro (Crna Gora)

SCSL

Special Court for Sierra Leone

SDA

Party for Democratic Action

SDB

State Security Service of the Ministry of the Interior of Serbia

SDC

Supreme Defense Council

xxii   A b b r e v i at i o n s

SDS

Serbian Democratic Party

SFOR

NATO-led Stabilization Force in Bosnia-Herzegovina

SFRJ/SFRY

Socialist Federal Republic of Yugoslavia

Snc

Serb National Council

SPO

Movement for Serbian Renewal (Vuk Draskovic’s party)

SPS

Socialist Party of Serbia (Milosevic’s party)

SRK

Sarajevo-Romanija Korps of the VRS

SRS

Serbian Radical Party (Seselj’s party)

SSNO

Federal Secretariat for People’s Defense

SUP

Secretariat of the Interior

SVK

Serbian Army of the Krajina (also Anglicized as “ARSK”)

TO

Territorial Defense

UCK

Kosova Liberation Army

UN

United Nations

UNHCR

United Nations High Commissioner for Refugees

UNPA

United Nations Protected Area

UNPROFOR

United Nations Protection Force

UNSG

United Nations Secretary General

UNSC

United Nations Security Council

VJ

Army of Yugoslavia (FRY)

VOPP

Vance-Owen Peace Plan

VRS

Army of Republika Srpska

ZNG

Croatian National Guard

A b b r e v i at i o n s   xxiii

Cast of Characters

Abdic, Fikret: Muslim businessman, pro-Serb member of Bosnian presidency

and leader of self-declared Autonomous Province of Western Bosnia, known as the Bihac pocket. Adzic, General Blagoje: Chief of JNA General Staff; acting federal deputy minister of defense; unindicted member of joint criminal enterprise in Croatia and Bosnia. Akashi, Yasushi: UN secretary general’s special envoy to Yugoslavia from January 1994 to October 1995. Annan, Kofi: UN secretary general from January 1997 to January 2007. Received Nobel Peace Prize in 2001. Ashdown, Lord Patrick (“Paddy”): British diplomat. Atlagic, Marko: Serb Member of Parliament in Croatian Assembly. Babic, Milan: President of Republic of Serb Krajina; indicted member of the joint criminal enterprise in Croatia; pleaded guilty to persecution, a crime against humanity; sentenced to thirteen years; committed suicide 5 March 2006. Boutros-Ghali, Boutros: UN secretary general from January 1992 to December 1996. Bulatovic, Kosta: Kosovo Serb nationalist leader. Bulatovic, Momir: President of Socialist Republic of Montenegro from 1989 to 1992 and of Republic of Montenegro from 1992 to 1997. Defeated by Milo Djukanovic for president in 1997. Unindicted member of the joint criminal enterprise for Croatia and Bosnia. Celeketic, Milan: Commander, Army of Republic of Serb Krajina. Cosic, Dobrica: President of the FRY in 1992–93. Widely known and influential writer who was one of the authors of the SANU memorandum.

Delic, General Bozidar: Commander of VJ 549th Motorized Brigade during Ko-

sova War.

Djindjic, Zoran: Founder of Democratic Party of Serbia and member of the

opposition to Milosevic. Helped to orchestrate Milosevic’s ouster from power in 2000 and transfer to The Hague in 2001. While serving as Serbian president was assassinated in 2003. Djordjevic, General Vlastimir: Assistant minister of internal affairs of Serbia for Public Security Division (RdB). Djosan, General Milos: Responsible for Djakovica and some air defense during Kosova war. Djukanovic, Milo: Prime minister of Montenegro until he defeated Momir Bulatovic for president in 1997, setting Montenegro on a path to independence from Serbia. Draskovic, Vuk: Member of the opposition, founder of the SPO party during Milosevic’s reign. Joined coalition government with Milosevic in 1998. Became deputy prime minister of FRY in 1999. Survived two attempted assassinations. Serbia’s foreign minister from 2004 to 2007. Farkas, General Geza: Chief of VJ security during Kosova Operation. Headed “Civil Defense” during the war. Ex officio member of Supreme Command staff (VJ General Staff ). Hadzic, Goran: President of Serbian Autonomous District of Slavonia, Baranja, and Western Srem; indicted member of joint criminal enterprise in Croatia; remains at large as of this writing. Janicevic, Bogoljub: Former police chief of Urosevac. Jovic, Borisav: Serbian representative on federal Presidency of Yugoslavia until demise of state. Member of rump presidency. Unindicted member of joint criminal enterprise for Croatia and Bosnia. Kadijevic, General Veljko: Federal secretary for national defense; unindicted member of the joint criminal enterprise with Milosevic in Croatia and Bosnia indictments. Karadzic, Radovan: President of the Bosnian Serb Republic, indicted by ICTY for genocide and other crimes. Kljuic, Stjepan: Croat member of the Bosnian presidency. Koljevic, Nikola: One of four top SDS leaders with Plavsic, Karadzic, and Krajisnik; former vice president of RS. Kostic, Branko: Montenegrin representative on federal Presidency of Yugoslavia until demise of state. Member of rump presidency. Unindicted member of joint criminal enterprise for Croatia and Bosnia.

xxvi  Ca s t o f C h a r a c t e r s

Kostic, Jugoslav: Vojvodina representative on federal Presidency of Yugoslavia.

Resigned in March 1991 and was not reappointed. Kotur, Colonel Milan: VJ liaison to KVM; chief of Pristina Corps infantry. Krajisnik, Momcilo: Founding member of SDS; senior deputy to Radovan Karadzic; head of Bosnian Serb Parliament. Indicted by ICTY and convicted on five counts of crimes against humanity; sentenced to twenty-seven years. Acquitted of genocide and complicity in genocide. Appeals chamber reversed conviction on all charges except those having to do with forcible transfer and deportation, and reduced Krajisnik’s sentence to twenty years. Prosecutor v. Momcilo Krajisnik, Appeals chamber judgment, 17 March 2009. Lazarevic, Major General Vladimir: VJ commander of Pristina (52nd) Corps of 3rd Army responsible for Kosova. Convicted of crimes against humanity. Sentenced to fifteen years. Appeal pending. Lilic, Zoran: President of the FRY from 1993 to 1997. Lukic, Major General Sreten: Chief of Serbian MUP headquarters staff in Pristina from June 1998 to June 1999. Indicted with Milutinovic et al. as member of joint criminal enterprise in Kosova. Convicted of crimes against humanity and war crimes. Sentenced to twenty-two years. Appeal pending. Markovic, Ante: Last prime minister of SFRY. Markovic, Mira: Wife of Slobodan Milosevic; head of JUL Party. Markovic, Radomir: Assistant minister of internal affairs of Serbia for State Security Division (SDB), replacing Jovica Stanisic in October 1998. Martic, Milan: From 1991 to 1995 held various leadership positions, including president, minister of defence, minister of internal affairs in SAO Krajina and RSK. Convicted of crimes against humanity and violations of the laws or customs of war. Sentenced to thirty-five years. Affirmed by appeals chamber, 8 October 2008. “Mauzer” (Ljubisa Savic): Head of paramilitary group the Panthers. Medic, Slobodan: Commander of the Skorpions, paramilitary group under SDB control. Sentenced to twenty years by Serbian War Crimes Court for his part in executing six young Bosnian Muslims, captured on videotape. Milanovic, Milan: Deputy defense minister of Republic of Serbian Krajina. Milutinovic, Milan: Elected president of Serbia in 1997. Indicted member of joint criminal enterprise for Kosova. Acquitted after trial by ICTY. Mladic, General Ratko: Chief of Bosnian Serb Army; indicted by ICTY for genocide. Remains at large. Nambiar, General Sadish: UNPROFOR commander in Bosnia. Ojdanic, General Dragoljub: VJ Chief of Staff, member of joint criminal enterprise

Ca s t o f C h a r a c t e r s   xxvii

in Kosova. Convicted of deportation and other inhumane acts and crimes against humanity on 26 February 2009; appeal pending. Pavkovic, Colonel-General Nebojsa: VJ commander of 3rd Army. Convicted by ICTY of crimes against humanity and violations of the laws and customs of war for his part in the joint criminal enterprise to remove Albanians from Kosova. Sentenced to twenty-two years in prison. Trial chamber judgment, 26 February 2009. Both Pavkovic and the prosecutor have appealed. Perisic, General Momcilo: VJ chief of staff, replaced by General Ojdanic in November 1998 for resisting VJ combat in Kosova without a declared state of emergency. Indicted by ICTY for aiding and abetting the shelling of Sarajevo and ordering a rocket attack on Zagreb resulting in casualties. Trial began on 2 October 2008. Plavsic, Biljana: Member of RS presidency, later president. Pleaded guilty to persecutions, a crime against humanity; sentenced to eleven years; early release on 27 October 2009. Raznjatovic, Zeljko (“Arkan”): Paramilitary head of Serbian Volunteer Guard (“Tigers”), under direction of SDB. Indicted member of joint criminal enterprise in Croatia and Bosnia; killed in January 2000. Sainovic, Nikola: Deputy prime minister of FRY. Convicted of crimes against humanity and violations of the laws or customs of war for his part in the joint criminal enterprise to rid Kosova of its Albanian population. Sentenced to twenty-two years in prison on 26 February 2009. Both Sainovic and the prosecutor have appealed. Seselj, Vojislav: President of Serbian Radical Party and paramilitary unit called Chetniks; indicted member of joint criminal enterprise in Croatia and Bosnia; trial began on 7 December 2007. Simatovic, Franko (“Frenki”): Head of special operations of SDB; indicted member of joint criminal enterprise for crimes against humanity and violations of the laws and customs of war in Croatia and Bosnia. Trial began on 28 April 2008. Simovic, Tomislav: Serbia’s minister of defense from 31 July 1991 to 19 December 1991; unindicted member of joint criminal enterprise in Croatia. Stambolic, Ivan: Mentor of Milosevic who orchestrated his ouster from the Serbian presidency. Assassinated in 2000 by SDB agents, reportedly at Milosevic’s direction. Stanisic, Jovica: Head of SDB until October 1998; indicted member of joint criminal enterprise for crimes against humanity and violations of the laws and customs of war in Croatia and Bosnia. Trial began on 28 April 2008. xxviii  Ca s t o f C h a r a c t e r s

Stevanovic, General Obrad: former assistant minister of the interior, Serbia. Stojicic, Radovan (“Badza”): Sent by Milosevic to Croatia in the summer of 1991

to establish Serb territorial defense in SAO SBWS; acting interior minister and chief of police; unindicted member of joint criminal enterprise in Croatia and Bosnia; killed on 10 April 1997. Stojiljkovic, Vlajko: Minister of internal affairs of Serbia; indicted member of joint criminal enterprise for Kosova; committed suicide before arrest. Tolimir, General Zdravko: Assistant commander for intelligence and security of VRS main staff, reporting directly to Ratko Mladic; awaiting trial for genocide and conspiracy to commit genocide. Ulemek, Milorad (“Legija”): Commander of the JSO, SDB special operations unit. Under a deal with Zoran Djindjic gave the order for police to refrain from intervening in demonstrations toppling Milosevic from power. Later convicted in Serbia for the murders of Djindjic and Ivan Stambolic and the attempted murder of Vuk Draskovic. Vasiljevic, General Aleksandar: Chief of JNA Security Administration, Military Counter-Intelligence Service, until 8 May 1992; unindicted member of joint criminal enterprise in Croatia. Vukovic, Colonel Vlatko: Commanded battalion south of Djakovica during Kosova war.

Ca s t o f C h a r a c t e r s   xxix

The International Criminal Tribunal for the Former Yugoslavia. Photograph provided courtesy of the ICTY.

Introduction This prosecution is arguably the most significant trial ever to be held of a political leader and Head of State. By the indictment he faces, the accused is alleged to be . . . the principal cause of much of the crime, tragedy and misery occasioned by the three wars covered by the charges. ICTY Chief Prosecutor Carla Del Ponte, November 2002

The trial of Slobodan Milosevic for war crimes, crimes against humanity, and genocide was proclaimed to be history-making. At the time only one other sitting head of state had been called to account in an international court for war crimes: Admiral Karl Doenitz, who became Germany’s head of state for a brief period after Adolf Hitler’s suicide.1 Given his limited rule, the part he played in the Nuremberg trial of top Nazis was a historical footnote. The trial of Milosevic, by contrast, was the calling to account of a man who had been at the apex of power for a decade. The historical nature of the case insured that it would be used as a measure to guide future trials of political leaders—for its failings as well as its achievements. It would also be used in debates over whether there should be trials at all, given its length, cost, problematic nature, and abrupt, inconclusive end. The trial was about one person. It did not and could not provide a complete historical record or a full accounting of all people who perpetrated war crimes. A criminal trial judges an individual defendant’s responsibility for crimes. It does not apportion guilt among individuals or ethnic groups. In the end a trial is a judicial assessment of evidence presented by the prosecution and the accused. In a criminal trial, proof of guilt for crimes charged must be “beyond a reasonable doubt,” the highest standard of proof in law. The prose-

cutor alone bears that burden. The accused is not obligated to present any evidence to refute it.

In the wake of the Second World War the Allies convened an international military tribunal to try top Nazis for war crimes, rather than summarily execute them,2 though initially Franklin Roosevelt and Winston Churchill favored the latter.3 The main trial of twenty-two top leaders, popularly known as the Nuremberg Trial, lasted ten months and ended in the acquittal of three and death sentences for twelve.4 Other trials were held in Germany, and another military court tried top Japanese officials in Tokyo.5 While the trials provided less than perfect justice, they established a precedent. The major powers had taken a step toward the rule of law in world affairs. It was not the first step, but it was a significant one. Progress toward international enforcement of a universal norm of behavior faltered for fifty years during the cold war. Yet those who believed in justice and an international order based on rule of law continued their efforts. The end of the cold war created space for the enforcement of human rights principles at the international level. Near the same time, in 1991, war came once again to Europe as Yugoslavia erupted in flames. Images of emaciated men behind barbed wire, women and children fleeing burning homes, and cities and villages besieged by armies were broadcast by television into homes around the world, provoking public outrage.6 The United Nations imposed an arms embargo that unintentionally favored Serb forces, inheritors of the Yugoslav People’s Army arsenal. Europe—and later the United States—sent diplomats to negotiate an end to the conflict. The goal was peace, not a just peace. Diplomatic efforts produced little until 1995.7 Under public pressure to do something, with states unwilling to sanction military intervention, the United Nations in 1993 established a court to try those responsible for war crimes and crimes against humanity. Most did not expect it to work, only to relieve the pressure to act. Others hoped that the existence of a tribunal would deter more atrocities. While the tribunal (the International Criminal Tribunal for the Former Yugoslavia, or ICTY) failed to satisfy either expectation, it came to serve an important purpose.8 As it tried those accused of crimes related to the conflict, the tribunal institutionalized the principle of accountability for crimes against humanity, war crimes, and genocide. International conventions and treaties defining acts so criminal that they were intolerable even in war became more than aspirational declarations of intent.9 With the advent of the   I n t r o d u c t i o n

ICTY (and soon after, the International Criminal Tribunal for Rwanda, or ICTR), these documents came to life. Establishment of these courts lent impetus to the founding of a permanent international criminal court. From now on, people concluded, crimes offending our deepest sense of humanity would be punished. Impunity had been dealt a blow. Initially only small fry were turned over to the ICTY, but that changed over the years through tireless efforts of activists and as the tribunal’s usefulness began to be recognized by realpoliticiens. Nevertheless, among diplomats and heads of state there remained the sense that certain influential people, like President Slobodan Milosevic of Serbia and President Franjo Tudjman of Croatia, were more useful as negotiators on the diplomatic stage than behind bars. By working with these men, the diplomats hoped to negotiate an end to the conflict.10 Prosecutors continued their investigations, however, which led inexorably to the palace doors.11 When Milosevic mounted his fourth (and last) war in Kosova, the evidence came together (helped by the United States, at long last providing real intelligence beginning in 1998). On 24 May 1999 Louise Arbour, chief ICTY prosecutor at the time, issued an unprecedented indictment against him and four of his top military and political associates for war crimes and crimes against humanity in relation to the armed conflict in Kosova, which still raged. It was followed by indictments for war crimes, crimes against humanity, and genocide during the wars in Croatia (on 8 October 2001) and Bosnia-Herzegovina (on 22 November 2001).12 With whom would the diplomats now negotiate? An indicted war criminal? In fact they did, and soon there were rumors of a deal with Milosevic under which he would not be arrested and handed over to the ICTY if he helped broker an end to ­hostilities.13 Milosevic was a sitting head of state when he was indicted for crimes associated with the war in Kosova. At the time he seemed safe from arrest. His alleged co-conspirators, Radovan Karadzic (former president of the Republika Srpska (RS) and Ratko Mladic (head of its army) had been indicted four years earlier but remained at large.14 It looked unlikely that Milosevic would face charges anytime soon. His fortunes changed on 5 October 2000, when a popular movement ousted him from power for (again) stealing elections in Serbia.15 Despite the vote count Milosevic refused to accept the outcome that he had lost the Serbian presidency to Vojislav Kostunica, claiming that it had been fraudulently secured. People took to the streets, while the army and police stood by, refusing to intervene on his behalf. Soon after, Serb authorities arrested him for abuse of office, including financial misdealings, diversion of public funds, I n t r o d u c t i o n   

ITALY

AUSTRIA

HUNGARY

Ljubljana

N

SLOVENIA

Zagreb VOJVODINA

CROATIA

ROMANIA

Novi Sad

BOSNIAHERZEGOVINA

Belgrade

YUGOSLAVIA SERBIA

Sarajevo

ADRIATIC SEA

MONTENEGRO Podgorica

Pristina KOSOVO Skopje

ITALY

MACEDONIA ALBANIA

0

30

60 mi

0

50

100 km

GREECE

Federal Socialist Republic of Yugoslavia, 1991

damaging Serbia’s economy, and introducing hyperinflation. Under pressure of a cutoff in aid from the United States, Prime Minister Zoran Djindjic of Serbia orchestrated the former president’s arrest and removal to The Hague on 28 June 2001, the Serbian high holy day marking its revered Battle of Kosovo Polje in 1389. No doubt Milosevic considered that the greatest insult.16 On 29 June 2001 Slobodan Milosevic arrived at the prison in Scheveningen, where accused ICTY war criminals are held pending the outcome of their cases.17 In less than a year, on 12 February 2002, his trial began. As in any criminal case, the prosecution had the burden of presenting evidence to support its charges with proof beyond a reasonable doubt. The task was formidable. It encompassed three wars fought in as many locations over a decade, conflicts which were alleged to be part of a joint criminal enterprise18 involving dozens of named and unnamed perpetrators.19 The challenge was to make the case expeditious, comprehensive, and comprehensible, goals that often proved contradictory. Deciding which crimes to charge out of so many possible ones was not   I n t r o d u c t i o n

ITALY

AUSTRIA

HUNGARY

Ljubljana

N

SLOVENIA

Zagreb VOJVODINA

CROATIA

ROMANIA

Novi Sad

REPUBLIKA SRPSKA

Belgrade

BOSNIAHERZEGOVINA SERBIA

Sarajevo

BOSNIA-CROAT FEDERATION

ADRIATIC SEA

MONTENEGRO Podgorica

Pristina KOSOVA Skopje

ITALY ALBANIA 0

30

60 mi

0

50

100 km

THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

GREECE

States of the Former Federal Socialist Republic of Yugoslavia, 2009

easy. Given sufficient evidence, the prosecution had to weigh a number of sometimes competing considerations. The numerous victims from hundreds of crime sites wanted their suffering acknowledged. The public had an interest in knowing the truth about Milosevic’s involvement in the wars, but required that it be delivered promptly and understandably. The court needed as full a reckoning as possible, but no more than that, to reach a fair decision in a way that would enable it to track, recall, and evaluate the evidence. Similarly, the trial had to be understandable to the accused if he was to answer the grievous charges against him, charges that if proved would put him behind bars for the rest of his life. The trial of a head of state for war crimes, crimes against humanity, and genocide is distinctly different from a domestic murder trial, as well as from a war crimes trial of a direct perpetrator. History and context become important in ways they are not in other criminal trials. To establish that Milosevic was responsible for ethnic cleansing in Bosnia, for example, the prosecution had to show that there was a plan to create an enlarged Serbian state, domiI n t r o d u c t i o n   

nated by Serbs, through the commission of egregious crimes, and that Milosevic supported the plan in concrete ways. Short of a signed order to drive people from their homes, evidence of what social and historical conditions produced the plan and why Milosevic originated or joined it was important to prove his responsibility. Determining the breadth of the criminal plan and the crimes needed to execute it required substantial evidence. The final indictment encompassed three conflicts (Croatia, Bosnia, and Kosova) carried out over nearly a decade throughout extensive areas of the former Yugoslavia.20 Milosevic was charged with criminal liability for his participation in what the prosecution called a joint criminal enterprise to force non-Serbs out of large sections of territory that would then become predominantly Serb and could eventually be attached to Serbia proper, thus diluting opposition to Milosevic’s rule. He was also charged with responsibility based on his de jure (legal) and de facto (actual) position of command over forces alleged to have committed crimes. Finally, he was charged with responsibility as a principal actor or complicitor (accomplice) in the crime of genocide against the Bosnian Muslims. In one of its most criticized decisions, the prosecution opted to combine the three indictments into one mega-trial.21 The advantage of doing so was practical in that it saved certain witnesses from having to repeat their testimony. It also made for a more coherent telling of how the conflicts evolved under Milosevic’s guiding hand. In one sense they were all of a piece, designed to preserve and enhance Milosevic’s stature and power. Because the prosecution received approval to join the cases as trial was about to begin, it lacked time to effectively fold the indictments into one, resulting in multiple charges for the same criminal act. The indictment could have been streamlined by reducing the factual allegations and would still have presented an overall picture of the criminal scheme, as will be discussed in chapters 2 and 16. Critics argue that separating the cases would have enabled completion of at least one of them within a reasonable time, thus preserving the public’s interest and securing a judgment before Milosevic’s death ended the proceedings altogether. Yet justice takes time. While justice should be expeditious for all concerned, summary justice, as in executions and show trials, is no justice at all. That the trial would last more than four years was neither foreseen by the prosecution nor the fault of its case organization. Milosevic, his illness, and his insistence on representing himself caused the excessively long trial. The court too bears responsibility for failing to stop his clear manipulation of the rules.   I n t r o d u c t i o n

Viewed by some as more spectacle than judicial proceeding, the trial lasted 466 days over the four years before ending abruptly with Milosevic’s death. Before it even began, Milosevic denounced the tribunal as a fraud and refused to acknowledge its validity to try him. Claiming the role of persecuted hero, he rejected representation by legal counsel, declaring instead his intention to “represent himself.” Yet he had no intention of defending himself, as he clearly announced to the court; only to accuse his accusers. Since he was ousted from power and locked up, he would take full advantage of his one opportunity to make his case to the public and to history. The court failed to recognize the inherent contradiction of Milosevic’s assuming a role in a proceeding that he considered illegitimate and granted his “request” for self-representation, thus giving him a soapbox for his political agenda. While long-term Balkan followers were not fooled by his mischaracterizations of history, much of the highly propagandized Serb public fell under his spell, thereby deferring to a distant future the possibility of coming to terms with the bloodshed and destruction wrought in their name. From his defendant’s chair in a Hague courtroom, Milosevic depicted himself as a hero, victim, and martyr, not just for “his” people but for all those oppressed by Washington’s pursuit of dominance and western corporate greed. That in itself is an injustice. While good reasons exist to criticize the exploitation of smaller nations by the United States throughout its history, Milosevic, who oppressed so many of his own citizens, was a false champion of the world’s oppressed. The court’s decision to permit Milosevic to represent himself was likely made to encourage him to participate in the trial rather than sit silently throughout, a stance which would have made the proceedings resemble a show trial. From that perspective, any participation short of disruption was welcome. For his part, Milosevic was willing to play by the rules to a certain extent to maintain access to a forum. While the court’s decision to allow Milosevic to represent himself was understandable, that decision, and the Court’s need to provide more latitude to a pro se (self-represented) accused, contributed substantially to the appearance that Milosevic was controlling the trial. This seriously limited the trial’s effectiveness—at least with regard to the goal of furthering truth and reconciliation in the region, a long-term project in any case. By seeking to avoid the appearance of a show trial, the court contributed to the appearance of the trial as a show, directed by Milosevic. This does not lead to the conclusion that Milosevic should not have been tried or that the trial was a farce. Far from it. Despite its often high drama and the spectacle that Milosevic sought to create, the trial was above I n t r o d u c t i o n   

all a legitimate legal proceeding in a legally established court by which a former head of state was brought to answer for his role in crimes and atrocities that shocked the world’s conscience. The Milosevic trial has been criticized as an example of what not to do, and been too easily dismissed as a result. Legitimate criticisms of the trial do not lessen its importance. Often more is learned from mistakes than successes. When another accused, Vojislav Seselj, insisted on representing himself at the ICTY, Judge Wolfgang Schomberg allowed it but immediately appointed standby counsel who could take over should the accused become disruptive, something for which he is known.22 Influence of the Milosevic trial was also evident in the trial of Saddam Hussein, where prosecutors chose to try a number of distinct cases rather than combine the atrocities of Hussein’s long rule into one super-case. This may not have been a wise decision, particularly since Hussein was executed after the first trial, eliminating the possibility of making him answer for his many other crimes. There is no doubt the Milosevic trial will be studied by future courts, prosecutors, and defendants for its successes as well as its failures. It would have been surprising if this “first” among trials had proceeded smoothly. That it did not does not justify forgoing such trials in the future. The alternatives to trying a head of state for widespread atrocities are unpalatable at best: summary execution and impunity. Both undermine respect for the rule of law, and the latter necessarily condones crimes against humanity and insures their repetition.23 While truth and reconciliation commissions, whether on the South African model or another, have a useful role to play in societies grappling with the results of years of civil conflict, they cannot replace the need for justice.24 This is perhaps most true when dealing with the ultimate leaders and strategists behind war crimes and crimes against humanity. It is far easier to contemplate reconciliation between a young soldier who shows genuine remorse for his crimes committed under orders and the family of his victim than between that family and the man who devised the strategy requiring the murder of innocents to serve his thirst for power. International criminal law is in its infancy. While it has supporters, it also faces great obstacles, not least of which are the powerful states who refuse to submit to its governance while continuing to undermine it in their singular pursuit of self-interest. Under the best circumstances justice is not perfect; more so when it lacks long traditions and well-established institutions to support it. For all their mistakes, failures, and inadequacies, the new institutions of international criminal law require and deserve support. They are the institutions of an aspirational world—one based on justice for everyone   I n t r o d u c t i o n

regardless of power, position, or privilege. The alternative is a world where those who wreak great havoc on their fellow humans are “rewarded” with golden parachutes, like the exile of the former Ugandan president Idi Amin, living out his days in a palace in Saudi Arabia after murdering 300,000 of his own citizens, looting the state treasury, and leaving an economically and psychologically devastated country. While such diplomatic solutions may end fighting for a time, they do not bring justice.25 They leave the future open to continuing cycles of revenge and bloodshed, festering hatreds ripe for exploitation by the next dictator seeking to grasp or hold onto power. Victims, alone with their pain and loss, receive no golden parachutes. They are left with their countries, livelihoods, and lives devastated. Worse, they are left with the belief that the rest of the world does not care. International justice has been opposed by those who cry that it violates state sovereignty. Precisely. International justice comes into play when a sovereign so abuses his power over his citizens as to offend our sense of what it means to be human. International justice declares that no sovereign should have that right. By his criminal acts the sovereign forfeits his power. International justice tells the victims that when they are brutalized others will not stand silently by. International justice should be the avenging angel outside the cell door who stands as a warning to all abusers of power. Only we, individuals joined together, not some superhuman entity, can make international justice a reality.

I n t r o d u c t i o n   

Op e n i n g S tat e m e n t s Chapter 1

This Tribunal, and this trial in particular, give the most powerful demonstration that no one is above the law or beyond the reach of international justice. Carla Del Ponte, Opening Statement, 12 February 2002

I challenge the very legality of this Tribunal. . . . Slobodan Milosevic, Opening Statement, 14 February 2002

Day 1: Prosecutor v. Slobodan Milosevic

The building housing the tribunal was ugly and forbidding. A rambling concrete structure, converted from an insurance building into three courtrooms and countless offices, it was surrounded by high fences and rolling barbed wire, with guards and metal detectors at all entrances. Picture ID was required for visitors, badges for employees and press. It more resembled a prison than one of the highest courts in the world where a historic trial was about to begin. On day one of Slobodan Milosevic’s trial, media from all over the world packed the courtroom and overflow areas, a sight rarely repeated during the following four years. Television cameras were set up on the lawn for post-trial news commentary. A wall of bulletproof glass separated the gallery from a technologically advanced courtroom with computer monitors, microphones, translating equipment, and video cameras, evoking comparisons to the command center of the Starship Enterprise. Milosevic sat on the left side of the courtroom, flanked by armed guards in blue uniforms, wearing bulky bulletproof vests under their shirts. Otherwise he was alone, a symbolic though false projection to the world, since he was assisted by a defense team in Belgrade, onsite legal assistants, and quite probably members of the Serbian State

Security Service (SDB). The accused wore a conservative suit, blue striped tie, and blue shirt. (For his opening statement two days later, he changed to a tie in the colors of the Serbian flag: red, blue, and white stripes.) He looked relaxed despite the imposing setting and the reason that brought him there. Short and stocky, with a jowly face and white hair brushed back from a receding hairline, he looked like a caricature of a communist apparatchik. Seated somewhat ambivalently in front of and to Milosevic’s right were the three amici curiae (friends of the court) appointed by the trial chamber to assist in assuring that all legal arguments and defenses available to Milosevic were raised, in light of his self-representation. All highly respected lawyers, the three—Branislav Tapuskovic from Belgrade, Queens Council Steven Kay from Britain, and the Dutchman Michail Wladimiroff—would see their roles change dramatically in the coming months. Kay’s adherence to proper English barrister attire (a wig of rolled white curls) and his trademark wirerimmed eyeglasses resting on the tip of his nose added to the historic sense of the occasion. At 9:30 a.m. a staff member in a long, black robe announced the judges in the two official UN languages, French and English. “All Rise. Vouillez-vous levez. The International Criminal Tribunal for the Former Yugoslavia is now in session. Le Pénal International pour l’ex-Yugoslavie est ouvert.” Simultaneous translators inside glass booths translated the opening words into Albanian and B/C/S, the latter the result of nationalism and a war that transformed one language into three ostensibly new ones. Patrick Robinson from Jamaica led the procession of three judges wearing black robes with distinguishing scarlet drapes. His patrician demeanor reflected a long diplomatic career. Milosevic considered him a sympathetic ally until Robinson became presiding judge halfway through the trial. He was followed by the presiding judge, Richard May of Great Britain, a highly respected jurist who had once unsuccessfully challenged Margaret Thatcher for a seat in Parliament. Known for his mastery of evidence and legal procedure, Judge May hid a kind heart behind an exterior gruffness. Judge O-Gon Kwon, a Harvard Law graduate from South Korea, entered last. The newest of the three judges to the ICTY, Judge Kwon became known for his photographic memory and attention to detail. His calm demeanor would prove useful as the stresses of a long and contentious trial played out. The judges exchanged bows with those assembled and took their seats on the raised dais. Judge May directed the registrar to call the case. All eyes were on Milosevic—butcher of the Balkans or Serbian martyr, depending on one’s point of view but inarguably the central figure in YugoOp e n i n g S tat e m e n t s   11

slavia’s demise and descent into ten years of war. Though defiant, he stood before the bar of international justice. No longer in control, he was now subject to the commands of others. The first sitting head of state called to answer for grave violations of international law before an international court, he was outraged at being selected for this ignominious role. He felt betrayed by his former international interlocutors, who had once regarded him as the key to peace and affected a camaraderie over shared glasses of whiskey and Viljamovka (his favorite pear brandy). Considering all the heads of state who had used criminal means to secure power and gone unpunished, his outrage was understandable. Yet an emerging international system of accountability must start somewhere. Milosevic was caught between a fading realpolitik and its policy of impunity and a growing call for international justice as essential to lasting peace. The ICTY chief prosecutor, Carla Del Ponte, rose to address the trial chamber, though she would not try the case herself. Del Ponte, fifty-five years old, a tough former Swiss prosecutor who made her reputation by prosecuting the mafia, had a diminutive stature that belied her courage and tenacity. Her consistent public pressure on politicians to arrest those she had indicted for war crimes hurt her popularity. But as she said on more than one occasion, it was not her job to be liked.1 Madame Prosecutor introduced the attorneys with major responsibility for the trial: the lead prosecutor, Geoffrey Nice, from Great Britain; Dermot Groome of the United States, who would lead the Bosnia part of the case; Dirk Ryneveld of Canada, responsible for Kosova; and Hildegard Uertz-Retzlaff of Germany, responsible for Croatia. Other assistant prosecutors helped make up the team. Del Ponte, Nice, and Ryneveld addressed the court, followed by the accused. Standing at counsel table, Del Ponte, set the scene. “The law is not a mere theory or an abstract concept. It is a living instrument that must protect our values and regulate civilised society. And for that we must be able to enforce the law when it is broken. This Tribunal, and this trial in particular, give the most powerful demonstration that no one is above the law or beyond the reach of international justice. . . . As Prosecutor, I bring the accused Milosevic before you to face the charges against him. I do so on behalf of the international community and in the name of all the member states of the United Nations, including the states of the former Yugoslavia.” Del Ponte emphasized that Milosevic as an individual was on trial, not the Serbian people. The tribunal’s purpose was to stop the cycle of revenge based

12  Op e n i n g S tat e m e n t s

on collective guilt, at the heart of which lay the destructive nationalism that fueled the Balkan wars of the 1990s. Nevertheless Milosevic, by insisting that he was defending the Serbian people, would attempt to put them on trial. Del Ponte challenged the accused’s declaration at his initial appearance seven months before. “This is a criminal trial. It is unfortunate that the accused has attempted to use his appearances before this Chamber to make interventions of a political nature. I can assure the Chamber that in the case before us the Prosecution will not allow itself to be drawn into any such exchanges. This is a Trial Chamber, not a Debating Chamber.” That the prosecutor eschewed a debate did not stop Milosevic from pursuing his agenda. While the court would try to limit his political polemics, it was far from successful. The prosecutor offered the court her view of Milosevic’s motivation for the crimes with which he was charged: An excellent tactician, a mediocre strategist, Milosevic did nothing but pursue his ambition at the price of unspeakable suffering inflicted on those who opposed him or who represented a threat for his personal strategy of power. Everything, Your Honours, everything with the accused Milosevic was an instrument in the service of his quest for power. One must not seek ideals underlying the acts of the accused. 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. These were not his personal convictions, even less patriotism or honour or racism or xenophobia which inspired the accused but, rather, the quest for power and personal power at that. Del Ponte turned to the victims, whom she did not literally represent but whose fate informed the indictment. She cast her net broadly. The trial which commences today will evoke the tragic fate of thousands of Milosevic’s Croatian, Bosnian, Albanian victims. To read about the sufferings endured by these countless victims and survivors is unbearable. Yet the accused, Milosevic, also caused other victims. And now, Your Honours, I am thinking about the Serbs. The Serbian refugees from Croatia, from Bosnia, from Kosovo abused by Milosevic, whose fears were fed and amplified and manipulated to serve Milosevic’s criminal plans. Many paid with their lives; most lost their homes and their futures. These men and women must rightly be counted among Milosevic’s victims, just as the citizens of the Federal Republic of Yugoslavia, who now must reOp e n i n g S tat e m e n t s   13

construct the exsanguinated country which Milosevic, the accused, bequeathed to them. If Del Ponte intended to win over a skeptical Serb audience, she failed. Many of Milosevic’s Serb victims directed anger at Del Ponte, not at the architect of their misery. Finally, she emphasized the trial’s historic nature, reminding the court and the listening public that the trial was of one man only and could not establish a complete picture of events or responsibility for them. That was left to a broader investigation of which the tribunal’s record formed but a part: The history of the disintegration of the former Yugoslavia and the fratricidal conflicts of another age which it brought about is a complex process which must be written by many people. 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. . . . 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 because it is imperative to respond to the victims’ demand for truth, “victims” in the broadest sense of that term, and to reduce the risks of seeing this played out again in another place in the world and, in particular, in the Balkans. But here, more modestly, it is Slobodan Milosevic’s personal responsibility which the Prosecution intends to demonstrate for the crimes ascribed to him, nothing but that, but all of that. Prosecution Overview

The lead prosecutor, Geoffrey Nice, rose to present an overview of the prosecution’s case. Evidencing an old-world courtesy, Nice, a highly accomplished London barrister, was well known for his eccentric taste in clothing. Though a black robe covered suspenders and vividly patterned shirts, his colorful and whimsical socks peeked from below. In the overflow pressroom I was unable to see what he had chosen for the momentous first day. Nice drew the court’s attention to the heart of the case: the grievous harm done to millions of people. He chose three “representative” stories. From Croatia, he told the court, they would hear from a fifty-eight-year-old man, one 14  Op e n i n g S tat e m e n t s

of six survivors of the Ovcara Massacre that followed the Yugoslav ­Army’s destruction of Vukovar. Approximately 260 men and one woman were taken prisoner and slaughtered. From Bosnia they would hear of a young woman burned alive with her newborn infant and forty-five family members in a house that paramilitaries had doused with petrol and set ablaze. And for Kosova, Nice related the story of eight young women repeatedly raped, then thrown into a well where their bodies were later discovered. Nice assured the court that the prosecution would keep such emotionally charged evidence to a minimum. The only forensic purpose, he said, was to answer this question: “Did the Accused know what his policies had wrought?”2 Nice answered, “Of course he did. Not only would matters have been reported to him, but in these days when the press, radio, and television bring wars to our homes as they occur, he cannot not have known. And therefore the question is if the Chamber is, in due course, satisfied that he lay behind what was happening, why did he continue; why did he not stop these things that were occurring?” It was Nice’s task to put the crimes in context. While Milosevic would locate seminal events in the fourteenth century, Nice focused the court’s attention on the twentieth. He began in 1974, when to disperse power more broadly Yugoslavia’s longtime leader Josip Broz (“Tito”) decentralized the constitution, one effect of which was to broaden the autonomy within Serbia of Kosova (and Vojvodina, a province in northern Serbia). The provinces gained power over their own courts, assembly, police, and educational systems. Kosovo Serbs, 23 percent of the population from 1948 to 1961, decreasing to less than 10 percent in 1991, became increasingly apprehensive and complained of discrimination.3 After Tito’s death in 1980 his “brotherhood and unity” mandate for many nationalities living peacefully together began to show cracks. In Kosova, Albanians demonstrated for republic status within Yugoslavia, equal with that of Serbia, Croatia, Slovenia, Bosnia, Macedonia, and Montenegro. Demonstrators were killed and jailed. Serbs also pressed for their national interests. Intellectuals in the Serbian Academy of Arts and Sciences (SANU) drafted a highly nationalistic “memorandum,” leaked to the press in 1986. Nice read from it: “The physical, political, legal, and cultural genocide against the Serb population of Kosovo and Metohija is the serious, serious defeat of Serbia,” and “Except in the wartime period, never have the Serbs of Croatia been so threatened as today.”4 Milosevic maneuvered his rise to power by capturing the leadership of the Serbian Communist Party, while at the same time declaring himself the defender of Serb nationalism. As communism began its demise throughout Op e n i n g S tat e m e n t s   15

Eastern Europe, Milosevic was well placed to establish his own party, the Socialist Party of Serbia (SPS), using it as he had the CP to gain power over republic and federal institutions, including the army, by the power of patronage. The elections of 1990 brought nationalists to power across Yugoslavia, except in Macedonia where former Communists (Party of Democratic Change) joined a moderate Albanian party (Party of Democratic Prosperity) to form a coalition.5 The rise of Croat nationalism under Franjo Tudjman fed Croatian Serb fears, as symbols of the murderous Croatian Ustasha from the Second World War once again appeared.6 When Tudjman and his nationalist party came to power in Croatia, he changed the Croatian constitution to reduce Serbs from a constituent people, equal to Croats, to a minority with fewer rights, providing Milosevic with ammunition to fuel the growing fire of Serb nationalism. Milosevic’s assumption of power began and ended in Kosova. In 1987 he opportunistically spoke to a Kosovo Serb crowd demonstrating against Kosova Albanian police violence, declaring, “No one shall dare beat you!” Two years later, having wrested leadership of the Serbian Communist Party and the presidency of Serbia from his mentor, Ivan Stambolic, he addressed a crowd one million strong, for the first time raising the possibility of an armed struggle to promote his Serb nationalist agenda. Resisting the province’s loss of autonomy, Kosova Albanians demonstrated in large numbers. Massive strikes followed, met with brutal repression by the Serbian authorities that left a hundred dead and a thousand put on trial. In 1990 Milosevic established his own political party, installing himself as president. Through it he was able to put his people in control of the media, the national banks, and major Serbian companies, Nice asserted. As president of Serbia he usurped the federal functions of customs and foreign relations and, most important, gained control over the Yugoslav military. The Serbian constitutional changes that he initiated revoked Kosova’s and Vojvodina’s autonomous status, but not their presence on the federal presidency. Provincial leaders were deposed through orchestrated rallies and replaced by Milosevic loyalists, allowing him to control the Yugoslav presidency (composed of representatives of each republic and the two autonomous provinces) until the federal state dissolved, at which point he proclaimed the Federal Republic of Yugoslavia (FRY), consisting of Serbia and Montenegro, to be its successor. While Milosevic initially aimed to control all of Yugoslavia and become the second Tito, Nice argued, Slovenia, Croatia, and Bosnia feared Serb

16  Op e n i n g S tat e m e n t s

dominance. When it became apparent that no federal solution was possible, Slovenia, followed by Croatia and Bosnia, declared independence. Milosevic adapted his plan to control all areas with sizable Serb populations, including substantial parts of Croatia and Bosnia. Since Serbs often lived side by side with other nationalities, for Milosevic to gain control non-Serbs had to be removed. Areas bordering Serbia, even where Muslims and Croats were the majority, were designated for Serb rule after non-Serbs were expelled. Milosevic argued that republics could not secede, only nationalities. Croatia and Bosnia could form independent countries, but only with redrawn borders that left areas with a Serb majority free to join mother Serbia. Nice told how Milosevic first took over one-third of Croatia. Paramilitaries from Serbia under the direction of Milosevic’s Serbian State Security Service provoked conflicts, eliciting intervention from a pro-Serb Yugoslav Army (JNA), which then took control of territory. Through beatings, destruction of homes, killing, and looting, Serbian forces expelled the non-Serb population, a practice that became known as ethnic cleansing. Milosevic was charged with responsibility for these crimes as the one in control or as a member of a joint criminal enterprise. After a ceasefire established by the Vance Plan on 2 January 1992 (Milosevic signed instead of Croatian Serb leaders, though he claimed to have nothing to do with the war in Croatia), the war moved to Bosnia, the most ethnically and religiously mixed republic in the former Yugoslavia. A Bosnian government was in the process of establishing an independent state. At the same time Bosnian Serbs were organizing to form their own “autonomous regions” to join the FRY. Led by Radovan Karadzic, Milosevic’s close collaborator, the Bosnian Serbs founded a political party (the Serbian Democratic Party, or SDS) through which they devised and implemented a plan to take power throughout much of Bosnia. As in Croatia, it entailed the forced removal of non-Serbs from the designated areas. Nice advised the court that the prosecution would establish that Milosevic had provided the significant financial and material support necessary for the Bosnian Serbs to wage war. “War” is something of a misnomer, he pointed out, since Serbian forces largely attacked civilians. While the case against the accused in Bosnia would focus on links between him and the bloody crimes committed by others, Nice also expounded on the crimes themselves, including the three-and-a-half-year siege of Sarajevo: “[W]e must go back to World War II to find a parallel in European history. Not since then had a professional army conducted a campaign of unrelenting violence against the

Op e n i n g S tat e m e n t s   17

civilians of a European city so to reduce them to a state of medieval deprivation in which they were in constant fear of death.” Milosevic’s guilt rested on funding the army that carried out the siege. At last Nice pronounced the word “Srebrenica,” a word that conjures images of killing fields, mass graves, and the depravity of humankind; 6,500 men and boys were executed there, Nice said.7 Milosevic was charged with genocide for his role in the massacre, as well as in eighteen other places in Bosnia and Croatia (the number for which he was charged was reduced to seven in Bosnia because of time constraints). Like Del Ponte, Nice pointed out that Serbs too were victims of Milosevic’s power mania. He referred to the Serbs of the Croatian Krajina, driven from their homes in 1995, when Croatia reclaimed territory that Serbian forces had taken earlier in the war. About 200,000 Serbs were forced out of the Krajina, though most had deep ancestral roots in the territory. Serbia did nothing to defend the population that Milosevic had incited to war and promised to include in a grand Serbian state. Betrayed and abandoned, the refugees who reached Serbia were shunted to Kosova to aid Milosevic’s project of shifting the province’s ethnic balance. The prosecutor concluded by returning to Kosova, as Milosevic had done at the end of his decade of destruction. Nice described how the Kosova Albanians established parallel civic structures after their loss of autonomy and ouster from government positions. Led by Ibrahim Rugova, they also initiated a nonviolent resistance movement inspired by Gandhi and Martin Luther King. When the international community ignored their plight in negotiating the Dayton Accords to end the war in Bosnia in 1995, nonviolent resistance lost support.8 Ragtag and loosely organized groups of young men formed the Kosova Liberation Army (KLA), but only gained community support when Serbian forces brutally attacked Kosovar civilians. As a number of witnesses would say, Milosevic created the KLA. By 1996 Milosevic was in trouble at home. The treasury had been drained to support Serbs in Croatia and Bosnia. Serbia remained under an “outer wall” of international sanctions that limited trade and investment. The country’s reputation had been tarnished. Citizens registered their displeasure by voting for the opposition, which won in dozens of municipalities across Serbia. Milosevic declared the vote invalid. Millions took to the streets in protest, returning every day for three months despite snow, rain, and freezing temperatures. Milosevic gave in and accepted the outcome of elections that threatened his power. Kosova became a convenient distraction with potential to reunite the Serbs behind him. And Milosevic understood that 18  Op e n i n g S tat e m e n t s

Serbia’s control of Kosova, which he needed to control Serbia, could only be secured through elimination of the Kosova Albanians. In the spring of 1997 the situation in Kosova was heating up. Since 1996 the KLA had been attacking Serbian police and Albanian collaborators. Serbia retaliated against the civilian population, using the opportunity to begin a new campaign of ethnic cleansing. The shadowy KLA revealed itself publicly for the first time in November 1997, when three masked and uniformed KLA members attended the funeral of Halit Gecaj. By October 1997 the Serbian MUP was deployed in full combat mode in Kosova.9 The KLA by 1998 had secured the central Drenica valley, which became a no-go zone for Serbian police, except in daylight hours. In late February Serbian forces launched a major assault on the valley, attacking the family compounds of known KLA members. Eighty-three people were killed, including at least twenty-four women and children. The KLA leader Adem Jashari was killed with all members of his family, save an eleven-year-old girl. The attacks radicalized the Albanian community, turning them away from nonviolent resistance. In March 1998 the UN Security Council condemned Serbia’s use of excessive force against civilians and imposed an arms embargo. By the fall of 1998, after an intense, summer-long offensive across Kosova, Serbian police had driven nearly 300,000 Kosovars from their homes into the hills, where an approaching winter threatened a massive humanitarian disaster. The Security Council passed Resolution 1119, declaring the situation a threat to the peace under article VII of the UN Charter—the precursor to armed intervention. NATO had received an activation order, putting it on alert to begin a military attack, when last-minute negotiations between the United States ambassador Richard Holbrooke and Milosevic led to an agreement requiring Serbia to reduce its force buildup to normal levels. The KLA, not a party to the agreement, took over abandoned Serb positions. Both sides used the month-long ceasefire to regroup for more fighting. In December 1998 Serbia tested NATO’s resolve with several small-scale operations. When NATO did not respond, the Serbian campaign moved forward. Milosevic saw an advantage in a short NATO air campaign to provide cover for driving ethnic Albanians out of Kosova.10 In January 1999 Serb forces massacred forty civilians in a remote village named Racak. It was a turning point in Serbia’s cat-and-mouse game with the international community. Milosevic was given one last chance to sign an agreement that would protect Albanians in Kosova. He opted for war. Even as peace talks were proceeding, Serbian forces attacked Kosovar villages, while additional forces massed on Kosova’s borders. Before the first Op e n i n g S tat e m e n t s   19

NATO bomb was dropped they began a systematic attack aimed at deporting a large number of Albanians from Kosova. Murder was one means. In a short time 800,000 Albanians (half the entire Kosova Albanian population) were forced into exile in Albania, Macedonia, and other countries, while hundreds of thousands more were displaced within Kosova. The prosecution’s evidence would show that Serbian forces killed approximately ten thousand Kosovars during the seventy-eight-day war. The lead prosecutor concluded: “In a career spanning 13 years, . . . criminal career spanning at least eight years, . . . he sought . . . to maximise his power and control. . . . [H]e denied all sorts of rights, some that initially looked minor, progressing as they did ultimately to the denial of the right of non-Serbs to live among their neighbours or, indeed, to live at all. . . . All the events into which this Chamber will now have to inquire will, we submit, point towards a central personality, the existence of a controlling human force. It’s a personality the accused seeks to say is not his, but there is no other.”

When one senior international observer called the accused on the phone to complain about Kosovo Albanians on horse carts and tractor trailers, with all their belongings, being expelled, what was the accused’s response? . . . [T]he people he had seen were on a picnic. Dirk Ryneveld, 13 February 2002

Dirk Ryneveld, a blonde-haired Canadian and the team leader for Kosova, introduced the first phase of the case. Though the Croatian and Bosnian wars preceded the war in Kosova, the court directed the prosecution to present Kosova first since its preparation was more advanced. Because of Kosova’s pivotal role in Milosevic’s rise to power, it was an appropriate beginning. Ryneveld’s job was to give an overview of crimes committed in Kosova in Milosevic’s attempt to hang on to power. Stating that the case was essentially one of “deportation” (commonly known as “ethnic cleansing”), Ryneveld nevertheless described some of the killings, sexual assaults, and property destruction used to terrorize the Kosovar population into flight. He drew a picture of Serb forces descending on Kosovar villages, forcing people from their homes at gunpoint, separating men and shooting them at point-blank range, raping women and girls, and burning homes and livestock in a relentless push toward Kosova’s borders, where all identification was taken and burned. Ryneveld promised to present evidence of mass graves, as well 20  Op e n i n g S tat e m e n t s

as exhumations and reburials carried out by Serb forces to cover up their crimes. The prosecution would also show that 225 mosques were intentionally damaged or destroyed as Milosevic’s forces sought to drive Kosovars permanently from the province. The prosecution would prove that the process took place across Kosova in a well-coordinated campaign both before and after NATO bombing, resulting in some 800,000 refugees and thousands of civilian casualties. “My Name is Slobodan . . .

On the trial’s third day Milosevic began the first of three opening statements that he would give over the course of the trial, never missing a chance to have his say. An accused is permitted to make an opening statement at the beginning of the prosecution’s case or before the defense case. Milosevic was allowed to do both. As promised, he did not address the judges and only marginally defended himself. Instead he attacked the tribunal. “I challenge the very legality of this Tribunal because it was not set up on the basis of the law. The Security Council could not transfer the right that it does not have to this Tribunal and, therefore, this Tribunal does not have the competence to try.” Judge May reminded the accused that the court had ruled against his legal arguments.11 Now was the time for Milosevic to make an opening statement if he wished. The judge reiterated his legal rights: “You have a right of silence during the trial. You’re not obliged to give evidence, to question witnesses, or to make submissions.” However, the judge cautioned, “[You] should be aware that if you make statements about the facts during submissions to the Court, such statements may be part of the material considered by the Trial Chamber in reaching its decision on the case.” Milosevic was not interested in the legal niceties of a trial he considered illegitimate. His purpose in participating at all was to use it as a forum to advance his political agenda, which only coincidentally and occasionally included defending himself against the charges. His audience was never the judges whom he disparagingly addressed as “Mister” rather than the prescribed “Your Honor” and who would decide his fate. His audience was history, and Serbs back home and in the diaspora. Milosevic dodged the criminal accusations made against him by figuratively placing his Serb brethren in the defense chair. He was in court as a scapegoat and their champion, he declared: “This is the first opportunity that I have been given, after seven months here, to address the public. Over the past two days, all the Prosecutors that we have heard here have uttered one particular sentence; that is to say that they are just trying an individual. . . . Op e n i n g S tat e m e n t s   21

Now, that is a very sensitive . . . point to link this up with a nation, with a people. So they’re trying an individual and not a nation. All three prosecutors said that. But in all the indictments, they are accusing the whole nation, beginning with the Serb intelligentsia. They have accused the Serbian intelligentsia, led by the Serbian Academy of Arts and Sciences. . . . They are accusing St. Vidovdan [sic] and the battle of Kosovo Polje.”12 If the accused went back to Kosovo Polje, circa 1389, it was going to be a very long trial indeed. Milosevic continued: “That is why this show which is supposed to take place under the guise of a trial is actually a crime against a sovereign state, against the Serb people, against me. You wish to try me for deeds carried out in the capacity of head of state, in the defence of that state and that people from terrorism and from the greatest military machinery that the world ever had, and it acted in conjunction with terrorism. . . . The whole world knows that this is a political trial and that it has nothing to do with law whatsoever.” Milosevic spent the rest of the day, plus the following one, accusing NATO and the United States for bombing Serbia in 1999, an intervention necessary to prevent Serbia from committing further crimes against the Kosovars. It is not far-fetched to conclude that NATO prevented genocide, given that Serb hatred toward ethnic Albanians went well beyond that toward Croats or Bosniaks. Milosevic insisted that the ICTY should try NATO for war crimes and, since the ICTY refused to do so, he would turn his own trial into a trial of NATO.13 Yet any crimes committed by NATO would not be a defense to crimes committed by Milosevic. In tribunal law, one crime does not justify another. Just as he had throughout his career, Milosevic used this bait-and-switch tactic to divert attention from the charges against him. Because he was making an opening statement—and therefore not introducing evidence that the court would consider in reaching judgment—the court allowed him to say whatever he wanted, even if irrelevant. Not that the ICTY was uninterested in investigating whether NATO committed war crimes. In her memoir Del Ponte discusses her ongoing efforts to pursue an investigation. She got no cooperation—not from NATO, NATO members including the United States, or Serbia. She tells of requesting any information that Milosevic might have had on NATO war crimes through one of his legal assistants, but Milosevic refused to provide any. We, the public, were now in Milosevic’s hands. For the first time in the trial, we were to be introduced to Milosevic’s world—a topsy-turvy place where he was the consummate peacemaker, a great statesman, and the voice 22  Op e n i n g S tat e m e n t s

of justice, who practically alone defended Yugoslavia against disintegration. In this view “camps” holding emaciated prisoners behind barbed wire became “collection centers.” Weapons and military equipment were humanitarian aid for Serbs in Bosnia and Croatia. The killing in Racak of forty-two Kosovars by Serb forces was a massacre of Serbs. It was a world where Serbia fought valiantly against the rising tide of fundamentalist Islam, while also standing alone against the military and political hegemony of the United States. For that, according to the former strongman, like all great martyrs he was brought low. The seduction of distorted worldviews like this one is that they often contain a kernel of truth. It is true that the UN, Europe, and the United States looked to Milosevic to force a peace settlement on the Croatian and Bosnian Serbs. It was precisely his power over them that gave him this pivotal position. However, whatever goals the United States and its allies were pursuing during their Balkan interventions did not negate the crimes of which Milosevic was accused. For several hours Milosevic focused everyone’s attention on the damage caused by NATO’s seventy-eight-day air war against Serbia, though it was not strictly relevant to a defense. He showed myriad photos of alleged bomb destruction and read the names and places of those who died. He announced to the courtroom that “this is a trial of those who defended themselves.” More than that, the task of the trial is to legalize crime, he said. Invoking the stereotype of Albanians as drug mafia, he sought to demonize them further by raising their support for Italian Fascists in the Second World War, just as he branded Croatians for the Ustasha support of the Nazis. While Milosevic’s ire was focused mainly on NATO for reasons irrelevant to his defense, he also raised potential defenses to some of the charges. His argument that Kosovars were fleeing and were killed by NATO bombs was relevant to answer charges of deportation and murder by Serbian forces under his control. In another legitimate defense, Milosevic claimed that property—from private homes to mosques and cultural monuments—was damaged and destroyed by NATO bombs, not by Serbian forces. Of course, he would have to produce evidence to support these defenses. When he turned to the Bosnian and Croatian charges, Milosevic claimed that the wars there were civil wars in which neither he nor Serbia had any part. He always favored “brotherhood and unity,” including the unity of Serbs within one state—and that state was the Socialist Federal Republic of Yugoslavia, the state, he thundered, which western powers wanted to dissolve into weak statelets. Op e n i n g S tat e m e n t s   23

He was always the peacemaker, Milosevic said, demanding to know why the international community had looked to him for that purpose in 1995, 1997, and 1998 but was now trying him for genocide he was accused of committing in 1991, 1992, and 1993. The international negotiator Carl Bildt told him about the Srebrenica killings, Milosevic claimed, denying any foreknowledge. Far from being involved, he gave refuge to a brigade of 840 Bosnian Muslims who swam across the River Drina to safety in Serbia.14 In fact, he alleged, UN forces presided over Albanian genocide against the Serbs after the Kosova War. Why was there no command responsibility for the UN? Milosevic denied having control over Croatian or Bosnian Serb leaders, or any power over the JNA and the presidency of Yugoslavia. As for supplying brother Serbs with arms and equipment, it was only natural to provide “humanitarian aid.” Referring to war crimes, he argued that leaders are not responsible for what madmen do. He insisted that crimes had been prohibited in written orders and that violators had been arrested. Outsiders were fomenting ethnic hatred as part of a global strategy to divide Slavs and Muslims. Despite the apparent contradiction, he accused President Alija Izetbegovic of Bosnia of inciting civil war by claiming that there could be no peace between Islam and other religions. Similarly, he claimed that the mujahideen fought alongside Albanians in Kosova as well as Muslims in Bosnia. Though Serbs faced the same threat as the West, their efforts at defense were not allowed, Milosevic complained.15 After nearly three days Milosevic defiantly concluded his defense statement: “I, arrested, imprisoned, am nevertheless the free. My name is Slobodan with a capital ‘S,’ which means ‘free’ in my language.” And so, the trial began.

24  Op e n i n g S tat e m e n t s

m i l o s e v i c wa s wa r n e d Chapter 2

The Circus of Frivolous Witnesses

After the lofty opening statements, the trial’s first witnesses were a disappointment to the press, politicians, and chief prosecutor. There were no big names like Bill Clinton or Richard Holbrooke. Instead Mahmut Bakalli, former communist party chief from Kosova, took the stand, followed by a handful of survivors—common folk, Kosovars who related their tragedies in simple, halting language. Even the reformist Serbian prime minister, Zoran Djindjic, called the witnesses “not serious” and said that they contributed to the trial’s “circus” atmosphere. And Chief Prosecutor Del Ponte admonished Nice and his team afterward: “This is not the trial we wanted to present to the world.” As Nice later told the court, Bakalli was one of the few local politicians willing to testify against the former Serbian strongman. The pervasive fear among potential witnesses was well grounded, as subsequent events would show. With survivor testimony, Nice sought to prove the crimes. Bakalli’s testimony also showed that Milosevic knew his forces were killing civilians as early as March 1998. Knowing about the crimes made him responsible to stop them and punish the perpetrators. Nice would show that he did neither, since they were part of his plan. Bakalli was on the Kosovar team that met with Milosevic and his subordinates in 1998–99 to find a solution to escalating violence in the province. He told of a meeting with the accused in April 1998, after the Drenica massacre in which the Serbian police killed the entire Jashari family, save an eleven-year-old girl (eighty-three killed, including twenty-four women and children). “You are killing women

Kosova Indictment For crimes in Kosova, Milosevic was charged with five counts of violating international humanitarian law, from 1 January to 20 June 1999: 1. Deportation (a crime against humanity): The crux of the prosecution’s case was that the accused, as part of a joint criminal enterprise, orchestrated a systematic campaign of terror and violence to force a substantial part of the Albanian population to leave Kosova to assure continued Serbian control over the province. Deportation is a crime against humanity under article 5(d) of the tribunal statute. 2. Other Inhumane Acts—Forcible Transfer—(a crime against humanity): Forcible transfer is a violation of article 5(i) of the tribunal statute. It is similar to deportation but implies the use of force and includes internal displacement. 3. and 4. Murder (charged as both a crime against humanity and a violation of the laws or customs of war): The indictment identifies six hundred Kosovars who were killed in sixteen separate incidents in the mass expulsion. Based on exhumations of mass graves and the number missing, human rights groups have estimated that approximately ten thousand Kosovars were killed during the conflict.1

kla

fighters included in this number were a minority. Unarmed combatants killed in

violation of the Geneva Conventions and the icty statute were counted. Murder, when committed in armed conflict (whether internal or international) and against a civilian population, is a crime against humanity under article 5(a) of the tribunal statute. It also violates article 3, which gives the tribunal power to prosecute violations of the laws or customs of war. 5. Persecutions (a crime against humanity): According to the indictment, Milosevic used mass forcible transfer and deportation, murder, sexual assault, and wanton destruction or damage of Albanian religious sites “to execute a campaign of persecution against the Kosovo Albanian civilian population based on political, racial, or religious grounds,” a crime against humanity under article 5(h) of the tribunal statute. For all crimes against humanity (icty article 5) the prosecution had to prove the following: 1. An armed conflict existed; 2. A widespread or systematic attack existed;

and children,” Bakalli had protested, to which the accused replied, “We are fighting against terrorists.” One by one, survivors of war and atrocity entered the international courtroom far from their rural villages to tell their stories, while the former dictator who had destroyed their lives sat and watched, awaiting his turn to interrogate them. The first of these was Agim Zeqiri, a farmer from Celina. Zeqiri’s inability to complete his testimony demonstrated the difficulties that victims faced in coming to testify. Permanently disabled from injuries 26  M i l o s e v ic Was Wa r n e d

3. Milosevic’s conduct was related to a widespread or systematic attack against a civilian population; and 4. Milosevic knew about the wider context in which his conduct occurred. The prosecution was also required to prove that the accused had the requisite mental state (mens rea) for the crimes, either intentional, willful, or (only and alternately for murder) with reckless disregard of the consequences to human life by his actions or those of his subordinates. For the crime of persecution, in addition to proving intent to commit the crime the prosecution had to establish that it was done with intent to discriminate on political, racial, or religious grounds. The charges were brought against Milosevic as an individual under article 7 of the statute providing for criminal responsibility in four situations, two of which are relevant in the Milosevic case: 7(1) individual responsibility and 7(3) command responsibility. Milosevic was accused of planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of the above-listed crimes. Committing (for purposes of the indictment) refers to participation in a joint criminal enterprise, not to physically perpetrating any of the crimes under article 7(1). The prosecutor charged him for failing in his command responsibility as well, under article 7(3): the responsibility of a superior for the acts of his subordinates, where the superior knew or had reason to know that a subordinate was about to commit violations of international humanitarian law or war crimes or had done so, and the superior failed to take necessary and reasonable measures to prevent the acts or punish the perpetrators. The prosecution alleged that Milosevic had command responsibility by virtue of his position (de jure), or because of his actual power and control, without regard to his position (de facto), or both. For Kosova the trial chamber directed the prosecution to conclude its case in chief within four and a half to five months, then begin presentation of the Croatia and Bosnia cases in September 2002. Milosevic’s defense case, if he chose to present one, would follow. The trial was expected to last two years. In the event, it went twice that long, with substantial adjournments, and only concluded with Milosevic’s death before completion of his defense case.

sustained in the war, Zeqiri was brought face to face with the man accused of planning and overseeing execution of the war that devastated his life. He was made to answer questions from the former president of his country in a highly structured proceeding that denied him the ability to tell his story in his own words or to ask questions in return. While Zeqiri did well and Milosevic was almost professional in his crossexamination, it was not surprising that the witness refused to continue on the second day. He appeared in court only to ask the judges to excuse him M i l o s e v ic Was Wa r n e d   27

from further testimony. To Judge May’s question, “Are you feeling fit enough to go on with your evidence?,” he replied, “No, I am not well at all. I am not in a position to discuss this. I have my own problems and worries.”2 When the judge asked if he could manage just ten minutes of questioning, he responded, “No. Please. Excuse me. Please.” Judge May acquiesced, stating, “We have to bring cross-examination to a close. We’ll note the circumstances and that will affect our consideration of the evidence.”3 On the previous day Zeqiri testified to the year-long period leading to war, during which the situation in Kosova grew increasingly tense, with police checkpoints placed on the main road outside his village. KLA forces occasionally passed through Celina, where the villagers gave them food and clothing. The day after NATO dropped the first bombs, Serbian forces entered Celina, burned houses, and surrounded the village. Zeqiri and his family fled to a nearby stream, but soon the men left for the hills, believing that only men were in danger from Serbian forces. They were tragically wrong. After a night in the mountains Zeqiri walked to a village where five to six thousand people had taken refuge. Soon the army and police surrounded that village too. The people surrendered. Men were separated from women and children and made to lie face down. One young man was taken away and shot. A man in a black mask kicked Zeqiri in the head. They forced the men to march, sing Serbian songs, and give the Serbian three-fingered salute as they passed burning villages. Eventually the men were put on a truck to Zur, from where they walked to Kukes, Albania. Zeqiri testified that on crossing the border, identification documents were taken, but not from him because he was “full of blood.” For several weeks he was treated in hospital and did not learn his family’s fate until his release. A cousin in Germany called to tell him, “Be brave. Your family and my family have all been killed.” Of eighteen family members, only Zeqiri and a nephew survived. The eldest murdered was sixty-two years old and the youngest one and a half. Nearly a year later Zeqiri returned home to find that Serbian forces had killed seventy-five of Celina’s citizens and burned most of the houses. They slaughtered two of his cows and stole the third, along with all his possessions. Milosevic attempted to get Zeqiri to say that the army was fighting with the KLA in his village. Zeqiri denied it. He also denied knowing of instances when the KLA killed Serbian police. Frustrated, the accused demanded, “You have television in your village?,” to which Zeqiri answered, “Yes, but most of the time there is no electricity.” Milosevic persisted, “You are able to watch television from time to time?” But the witness responded, “I’ve never 28  M i l o s e v ic Was Wa r n e d

been interested. I’m interested in my family.” Finally the accused demanded, “Didn’t you have a television in your house?” Zeqiri answered simply, “No,” demonstrating Milosevic’s unfamiliarity with the lives of citizens in his southern province. Zeqiri’s testimony was corroborated in broad outline by a string of survivor witnesses, who testified that they were forced at gunpoint to leave their homes and their homeland to become refugees in Albania, Macedonia, and other countries, while their property was destroyed so that they would have nothing to return to. The prosecution established that evictions occurred across Kosova in a highly organized manner, beginning shortly before NATO started bombing. It was evidence of a campaign that could only have been designed and carried out with approval at the highest level. Zeqiri was followed to the stand by other survivors, including a housewife, a doctor, and a professional translator. Over more than two weeks their testimonies painted a picture of massive deportation. One witness, Dr. Agron Berisha, described the mass exodus of frightened civilians amid burning villages as a “Golgotha.” Fehmi Elshani, a sixty-seven-year-old retired farmer, told of soldiers descending on villages near him immediately after the first NATO air strike, shooting at and torching houses. For days he and other villagers went from house to house seeking safety. He and his wife were discovered hiding in their cellar by Serbian police, one of whom was moments away from cutting his throat when another policeman intervened. Before reaching safety in Albania, police tried to extort money from him and took all his identity documents. Halil Morina, a sixty-five-year-old retired farmer, testified that he watched tanks and infantry arrive after the killing of two policemen. Serbian forces shelled houses in his village for four hours, killing thirteen people, including an eighteen-month-old infant. They torched houses and damaged a mosque. Morina set his cows loose, joined other refugees, and left for Albania on buses organized by Serb civilians. Ajmoni Behrami, a thirty-two-year-old housewife, testified that she lost her husband and her infant son, who starved to death when she was separated from him. After returning from Albania she saw the mass grave in which her husband was buried with 164 others. Dr. Agron Berisha witnessed the murder of two cousins and saw the dead bodies of two other cousins dragged from a house. He learned that forty people were herded into a nearby pizzeria and mowed down with automatic weapons. The court would hear from a woman who miraculously survived. After being a refugee in Albania, the doctor returned to Suva Reka to find M i l o s e v ic Was Wa r n e d   29

approximately half the houses burned and forty-nine of fifty villages in the municipality destroyed. Five hundred of Suva Reka’s citizens had been murdered. While the testimony of Kosova’s survivors did not create the media splash that Djindjic, Del Ponte, and others had hoped for, they were the heart of the case, the reason why Milosevic sat in the defense chair. Their testimonies were not flawless. Several were reluctant to admit knowledge of the KLA, whether out of habit, fear, truth, or some other reason. It was left to Halil Barani, president of the Mitrovica branch of the Center for the Defense of Human Rights and Freedoms, to acknowledge the KLA: “After the offensives and massacres of Albanians at the hands of the police, army and paramilitaries, the ranks of the KLA grew from day to day, so that people who were faced with extermination could defend themselves.” Similarly, most of these first witnesses denied knowledge of any damage from NATO bombing. Several witnesses left Kosova a few days after bombing began, and as they testified, they knew no more than what was broadcast on television. For others, however, the denials did not always ring true. In certain instances the prosecution acknowledged KLA presence, as well as destruction by NATO. Witnesses who denied it categorically appeared less than fully ­honest. Witnesses’ reticence to speak of the KLA or to acknowledge that some NATO bombs went astray would not discredit their entire testimony. Judges are less likely than a jury to disbelieve all of a witness’s testimony because one or two points are questionable. For the most part judges understand that even under oath people can be less than candid for a variety of reasons. Not least is the desire to make one’s universe coherent. This is especially true for those suffering from extreme trauma. Through survivor testimony a pattern emerged, one familiar to Croatian and Bosnian victims of Serb forces in earlier wars. Serb forces surrounded and fired on villages, entered, killing some to terrorize the rest and make it easier to expel them, and completed the “cleansing” operation by looting and burning houses and businesses. Survivor testimony was critical in establishing that Serbia’s ethnic cleansing campaign was highly organized and planned well in advance of the NATO bombing, sweeping in blitzkrieg fashion across Kosova and driving nearly a million Albanians out of the province within a few weeks of the first NATO air strike. One wonders why survivor testimony was considered so unimportant by so many people, both critics and supporters of the trial. Was it prejudice against illiterate peasants? Prejudice against Albanians? The desire to use 30  M i l o s e v ic Was Wa r n e d

the trial to convince Serbs of Milosevic’s crimes in Kosova? Or to make the trial into a media drama? Whatever the reason, testimony by people who had been so horribly brutalized was not considered important enough to open this historic trial. Of course leadership trials must focus on the leader’s links to the crimes, but the crimes must also be proved in court. Moreover, a trial offers victims the opportunity to confront the person they consider responsible for their suffering, to tell their story to the world, often a significant step in healing. For the most part the press failed to educate the public about the importance of victims’ testimony in the Milosevic trial. Examining Milosevic’s Cross-examination

After two weeks of trial and half a dozen survivor witnesses, it was clear that Milosevic would use cross-examination more as a way to present his political case than to challenge the prosecution witnesses. Since he was not represented by counsel, the court gave him more leeway in cross-examination, though Judge May increasingly intervened to stop commentary and repetitive questioning that elicited nothing while allowing Milosevic to make unsubstantiated statements as if they were fact. Milosevic also used crossexamination to intimdate witnesses, argue, and make speeches. In cross-examining Halil Morina, who testified about a massacre of eleven civilians in his village of Landovica, Milosevic pressed him for information on NATO bombing and alleged KLA murders of Kosovar civilians and police. The witness repeatedly answered that he knew nothing about KLA activity or NATO bombing, since he was in Albania at the time. A frustrated Milosevic concluded, “Quite obviously, you know nothing of what I’m asking. . . . Gentlemen, you’re bringing in witnesses to abuse me.” Judge May rebuked him, “That’s a comment. You can give your evidence in due time. The witness says he knows nothing and it’s pointless to ask him about things he knows nothing about.” While acknowledging the validity of the prosecution’s concerns over diverting the trial from the issue of Milosevic’s guilt by opening the door to irrelevant matter, the trial chamber ruled that Milosevic was entitled to raise issues on cross-examination relating to NATO and the KLA when they were relevant as a potential defense or to test a witness’s credibility. It was proper for Milosevic to ask if injury, death, or destruction to which the witness testified was caused by NATO or the KLA. If Milosevic could establish this, it would be a defense to the charge that Serbian forces committed the crimes. It might also undermine the witness’s credibility. The chamber did not say that NATO and KLA activity were admissible M i l o s e v ic Was Wa r n e d   31

under the disfavored principle of tu quoque—excusing criminal conduct by one party because the other party engaged in it as well. Even Milosevic stated forcefully that he was not raising issues around NATO and the KLA as a tu quoque defense: “I want to make things quite clear. It is not a question of any kind of justification of alleged crimes of the Yugoslav Army and police. . . . I submit the Yugoslav Army and police did not commit crimes.” A number of commentators praised Milosevic’s cross-examination. From my position, it often seemed detrimental to his defense. Though Milosevic may have known everything of importance that happened, it appeared that he missed some of the details, those in which his secret police were supposed to be well versed. Questioning Qamal Shabani, Milosevic asked, “Isn’t it correct that before the bombing your brother, as a member of the KLA, got killed crossing back into the country in April?” Shabani’s answer ended this line of questioning, “That’s not true. My brother . . . retired as an invalid, suffering from heart disease. When democratic change came to Albania, he went there to recover from his illness. He died from a heart attack in Dures [Albania in 1993].” Milosevic was not above intentional distortion. Pretending to read in English from the Human Rights Watch (HRW) report Under Orders: War Crimes in Kosovo, Milosevic implied that according to the report the KLA killed twelve members of the Gerxhaliu family. In fact the report concluded that they were killed by government forces.4 One of the weaknesses of Milosevic’s cross-examination was his way of asking questions that allowed the witness to present evidence he had been unable to give on direct examination. To the prosecution’s advantage, he repeatedly violated a cardinal rule of trial attorneys: never ask a question to which you do not know the answer. In a colloquy with Shabani, Milosevic asked, “You said you were afraid. One hundred people were there. It was raining?” Shabani answered, “Yes, that’s right. When murders, injuries were committed we were scared, panicky and left our homes and took to the mountains.” Not content with this answer, Milosevic went on, “As it was raining, you went back inside.” Witness: “The next morning. We spent the night outside in the rain—everyone. Women and children.” With Milosevic’s help, Shabani was able to draw a more nuanced and sympathetic picture of what it was like in his village when the war began and Serb forces turned on the civilian population. Another cornerstone of Milosevic’s style was ridicule and sarcasm. During cross-examination of Sabit Kadriu, former local head of the Council for the Defense of Human Rights and Freedoms, Milosevic made the following 32  M i l o s e v ic Was Wa r n e d

remarks: “I can’t even have a comment to something as ludicrous as that.” “You spoke about an attack on Qirez. That is incorrect because nothing else you said was correct.” “Now we have heard an absolutely fantastic assertion.” Occasionally Judge May intervened to admonish Milosevic that crossexamination is not the time for commentary, but this failed to reform him. “I should like to ask you not to give me instructions,” Milosevic retorted. No counsel would be permitted to make such disrespectful statements to the court or to a witness, as Milosevic routinely did. Nor would he or she be allowed to so cavalierly include misleading, erroneous, and distorted statements and suppositions under the guise of cross-examination. The tribunal’s Code of Professional Conduct for Defense Counsel requires counsel to “act fairly, honestly and courteously towards” other counsel and their clients.5 Defense counsel are also required to “take all necessary steps to correct an incorrect statement made by Counsel in proceedings . . . as soon as possible after Counsel becomes aware that the statement was incorrect.”6 The rules go on to provide that “It is professional misconduct for Counsel . . . to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”7 Despite his law degree, Milosevic was not a lawyer and conducting his own defense did not make him one.8 Therefore he was not subject to the defense counsel’s Code of Professional Conduct or to regulation by a local bar association. Of course Milosevic was not really trying to defend himself against the charges. He assumed that he would be convicted and receive the maximum sentence of life in prison. His goals for the trial included establishing as historically correct his view of events and his role in the Balkans during the 1990s, which involved discrediting those who he felt had betrayed him, such as western and international diplomats; and furthering the myth of himself as a savior and martyr of not only the Serbs but all people subservient to the major powers, the little David standing up to the big Goliaths (the United States and Europe) represented by the tribunal. Milosevic’s goals reflected the idealized world he created around himself in keeping with his narcissistic personality. Cross-examination by a self-represented accused who did not accept the court’s legitimacy and had little to lose in showing his contempt for the process provided the trial chamber with a unique challenge to maintain courtroom decorum, while assuring a fair trial for the accused. Milosevic complained loudly about having his microphone shut off “ten times” by Judge May during one session and of not being allowed to complete his crossexamination. Judge May was not moved, “You’ve heard our ruling. We will M i l o s e v ic Was Wa r n e d   33

allow what is reasonable and if it is not, we will continue to switch off your microphone.” Given Milosevic’s strategy of cross-examination, the ruling, together with the court’s practice thus far, placed the court in an adversarial position to the accused, contributing to an appearance of bias. Though the chamber had contempt power and could remove an accused who persisted in disruptive behavior, neither Milosevic’s cross-examination tactics nor his occasional tirades about the illegality of the tribunal rose to such a level. The chamber continued to rely on verbal restraint. Milosevic pushed the limits at every opportunity, but he maintained a certain level of civility to insure that he would keep his forum. For its part the court gave Milosevic much leeway, to assure that he would continue participating in the process, if only under his conditions. Though judges are required to give more leeway to a pro se defendant than to professional counsel, this panel went too far. They mistakenly believed that leniency would elicit Milosevic’s cooperation, using basic psychological techniques on a master strategist who operated solely out of self-interest. His cooperation was calculated, as it had been in negotiations over the fate of Bosnia, Croatia, and Kosova. He would push until he felt resistance, then he would push some more. Only when his opponent called “stop,” and followed words with actions, did he finally comply. The court’s problem was its inconsistent follow-through. Judge May warned Milosevic numerous times that cross-examination would be ended if he continued wasting time and using it for his political, nonforensic purposes. But despite Milosevic’s failure to heed the warning, the judge regularly extended his time. When the judge bent over backward to accommodate the accused, Milosevic saw an opportunity to add to his strategic repertoire. A firmer hand would not only have shortened the trial but also made the judges appear in control rather than Milosevic. “I Warned You Would End Up in The Hague. . . .”

A month into the trial, the media, Djindjic, and Carla Del Ponte got what they wanted: a big-name witness. Lord Paddy Ashdown, British Member of Parliament, testified on one of the key elements necessary to establish Milosevic’s guilt under the command responsibility doctrine: his knowledge of massive crimes and human rights abuses in Kosova as early as 1998 and his failure to do anything to stop them. Indeed Milosevic’s inaction suggested that the crimes were part of his plan. An ex-military officer, Ashdown had followed the events and wars of the 1990s and was an early advocate of international intervention. Reports of increasing violence in Kosova disturbed him. In June 1998 Ashdown flew to 34  M i l o s e v ic Was Wa r n e d

Leposavic/ Leposaviq

N

SERBIA Kosovska Zvecan Mitrovica/ Mitrovice

Zubin Potok

MONTENEGRO

Smrekovnica Podujevo/

Podujeve

Istok/Istog

Rozaje

Vucitrn/ Vushtrri

Dubrava Srbica/ Prison Skenderaj

Obilic/ Obiliq

Kolic

Pristina/ Prishtina

Pec/Peja Klina/Kline Decani/Decane

Glogovac/ Kosovo Polje/ Gllogoc Fushe Kosove Lipljan/Lipjan

Junik Pusto Celo

Rakovina Orahovac/Rrahovec Djakovica/Gjakova Suva Reka/ Bela Crkva Suhareke Korenica Zrze Rogovo Trnje Celina V Krusa

Meja

Prizen Vronica

ALBANIA

0 0

5 5

10

Kosovska Kamenica Kamenice

Novo Brdo/ Novoberde

15 mi

Racak

Gnjilane/Gjilan

Stimlje/ Shtime Urosevac/Ferizaj

Strpce/ Shterpce

Vitina/Viti

Presevo

Kacanik

Zur

Gora/ Dragash

Skopje

THE FORMER Y U G OSLAV REPUBLIC O F MACEDONIA

10 15 20 25 km

Major city within each municipality (with Serbian and Albanian names)

Kosova, 2009

Macedonia; there he met with the country’s president, Kiro Gligerov, who expressed concerns of an impending refugee crisis if violence drove Kosovars over the border. Unable to secure a visa from Belgrade, Ashdown traveled to northern Albania, where he met forty to fifty refugees from Kosova. They were in a “harrowing state,” some wounded from gunfire, one or two close to death. They were men and women, boys and girls of all ages. Their stories were similar, evidencing a pattern to their expulsion by Serb forces. After being M i l o s e v ic Was Wa r n e d   35

ordered to leave their villages, they found their way through forests and over steep mountain passes, usually at night. Making their journey more hazardous, shooting continued until they had crossed the border. Ashdown looked through binoculars into Kosova, where VJ tanks, mortars, and platoons in APCs were bombarding houses and villages. “I saw no return fire. I did, however, see these units engaging, . . . indiscriminately the houses and villages in this area, in a way which I could not relate to military objectives, . . . and I regarded as very shocking.” He also saw VJ troops firing into the forests, which was “consistent with the refugee stories of being subjected to shell-fire as they sought to escape Kosovo . . . through the forests and across the high mountain passes.” Ashdown returned to Kosova in late September 1998 amid reports that hundreds of thousands of Kosovars were being forced from their homes and living in the open with winter approaching. He carried a letter from Prime Minister Tony Blair to Milosevic, as well as a visa from the FRY. Accompanied by Ambassador Brian Donnelly and his military attaché, John Crosland, Ashdown traveled to south central Kosova, encountering a swath of burned villages along the way. Shops and houses were destroyed, livestock lay dead and bloated. In one hamlet the entire supply of grain for the next year’s planting had been burned. In Prilep, which was completely destroyed, he met an old woman and her daughter in the remains of their house. The old woman said they came during the day to tend the farm animals. It was too dangerous to stay at night. Two men who dared to do so were found the next morning with their throats cut. Ashdown, Donnelly, and Crosland made their way to the Drenica Valley, a former klA stronghold and scene of the summer’s most intense police action. Milosevic had assured the ambassador that fighting there had stopped. The British delegation found that this was true, but the nearby area around Suva Reka was convulsed in flames. Every village in the valley was ablaze under bombardment by Serbian forces. Ashdown described his reaction and that of the ambassador as “deeply shocked.” Donnelly immediately reported to the British Foreign Office by satellite phone that Milosevic had lied to them. Ashdown’s conclusion, he testified, was shared by the ambassador: that the burning and shelling were “indiscriminate, systematic and of a nature to terrorize and drive out the civilian population.” The British group came prepared with a video camera. Nice showed the video they had made, accompanied by Ashdown’s narration: “We’re looking across the Suva Reka valley, and you can see various villages burning. . . . I think I counted that day some sixteen villages on fire.” Earlier Ashdown 36  M i l o s e v ic Was Wa r n e d

described the type of weaponry used: “And we could . . . not only see the strike of the shells, but we could hear the boom of the artillery. And our conclusion was that the weapons being used here probably were the full range of weapons available to an armoured brigade.” During the defense case the Ministry of Interior (MUP) general Obrad Stevanovic confirmed this, though he insisted the weaponry was used for a legitimate purpose: to “neutralize terrorists” and their leaders. Stevanovic also admitted that the police had anti-aircraft guns, which possibly were aimed at houses, but again only to “neutralize terrorists” if they were inside. When the weapons were used in this way, the police general did not consider shooting anti-aircraft guns at houses and people to be excessive. Ashdown met a local Kosovar who showed him his destroyed house and shop. The man said that Serb forces had given the village a deadline by which the residents were to hand over all weapons. When the villagers protested that they had none, they were told to buy them on the black market or their village would be burned. The people collected 10,000 dm (about $5,000) and purchased weapons, many of Second World War vintage. Ashdown testified that this was apparently part of an ongoing scam. The next day, Serb forces (likely MUP) would return and take the money and the weapons, which they would resell on the black market to be available to the next group of villagers. When Serbian police prevented Ashdown from entering Studencani, he returned the next day in the company of Mrs. Morgan Morris, representative of the UNHCR. The two persuaded the elderly villagers to show them the cache of weapons purchased for the Serbian authorities. Ashdown told the court, “These arms were in no way hidden. They were in a cupboard. They were not in use. I inspected them. Some of them could have been immediately serviceable, but many were rusted beyond use.” Ashdown was videotaped inspecting the weapons, and Milosevic attempted to misuse the videotape during his defense case, claiming that Ashdown was inspecting weapons belonging to the KLA. Morgan and Ashdown set out for the area where villages were burning, but police turned them back. Rather than return to Prizren, they took a back road and discovered a group of IDPs. Ashdown pointed it out for the court: “And this is where we came across a dreadful convoy of refugees—and the video shows what we found—on the back of tractor trailers, sheltering under plastic sheets. A few old men, women, young children, some babes in arms, a mother who was pregnant and due to give birth in the very near future, tumbled together on the back of tractors under the pouring rain. These were the human tide of refugees that had been pushed out.” M i l o s e v ic Was Wa r n e d   37

Villagers told Ashdown and Morgan that Serb forces had given them a deadline to leave their villages or face bombardment. When they left, the attack had already begun. “They had been driven by these bombardments down the valley towards the village of Sopina; and . . . they had just received information that this village too was about to be subject to bombardment, and they were trying to flee desperately down the valley to get away from this, and they begged our help to escort them down the valley.” Ashdown told the court how this encounter affected him: “I found it very difficult to cope with at the time, but this woman here with the blue shawl is actually sheltering a young child in arms, and you can see the old women and children around there sheltering. It was pouring with rain. . . . They were desperately frightened. And I found it a deeply terrible sight.” When he met with Milosevic, Ashdown presented Prime Minister Blair’s letter, in which he expressed “deep personal concern about the situation and said he was disturbed and perplexed by evidence of continuing hostilities and the rapidly developing humanitarian crisis.” Ashdown then confronted Milosevic with what he had seen and advised him that it violated international law. Milosevic denied that the events described by Ashdown were occurring. When Ashdown insisted that he had seen them with his own eyes, Milosevic conceded that they could be happening, but only through the actions of rogue forces beyond his control, a preposterous statement given the organized and widespread nature of what Ashdown had seen. He nevertheless said that he would take steps to stop the hostilities immediately and bring those responsible to justice. There was no evidence that he ever did. Ashdown recalled his warning: “I specifically said that his actions were clearly in breach of the Geneva Convention and that in my view if he continued he would make himself indictable for war crimes because he was personally responsible after this meeting. . . . I drew attention to the plight of the refugees. I said I found it disgraceful that a country could treat its citizens in such capacity. I warned him of an impending humanitarian catastrophe of massive proportions. Mr. Milosevic said there were only a small number of refugees in the woods. I said there were 20,000 by UNHCR estimates and if they were not fed and housed it would fall to his responsibility.” According to Ashdown’s testimony, he explicitly warned Milosevic of the consequences if he failed to act: “I said if the gross, flagrant breaches continued, the international community would be left with no option but to intervene. If he were to underestimate the gravity or determination, it would be a very grave miscalculation.”

38  M i l o s e v ic Was Wa r n e d

On cross-examination Milosevic never challenged the veracity of this conversation, though Judge May urged him repeatedly to question the witness about it “or the court would assume he agreed with Ashdown’s report of the meeting.” Instead Milosevic directed his cross-examination to alleged war crimes by NATO, Britain, and the KLA. In an effort to remind Ashdown about Northern Ireland, he pressed him to agree that a state has a right to fight terrorism within its borders. To each of these allegations Ashdown responded that whether they were true was irrelevant, because none of them justified what Milosevic and his forces had done. “Estimates are that long before NATO, more than 300,000 people had been driven from their homes. That was the responsibility of you and your troops. If I may remind you, the purpose of my visit was to persuade you to take action to prevent that. I said you would make [NATO intervention] inevitable and I warned you that if you did you would end up in this court and here you are.” Ashdown’s testimony strongly supported the indictment’s command responsibility claim that Milosevic was aware of the acts committed by Serb forces in Kosova, including looting, burning houses, and destroying civilian property, yet did nothing to prevent or punish those responsible. Ashdown concluded his testimony, “The international community had been warning him even before I arrived. I must presume he knew about it. But from the moment I informed him he could not deny knowledge.” Ashdown’s testimony also revealed a plan to force Albanians from Kosova, a plan originating well before NATO bombing, undermining Milosevic’s defense that Kosova Albanians fled the province to avoid it. Ashdown’s evidence of “what Milosevic knew when” was powerful. Though the events he described happened before the period covered by the indictment, they reflected Milosevic’s intent regarding the Kosovars and his knowledge of crimes committed by Serbian forces, crimes that facilitated the deportation of half the province’s Albanian population. Having refrained from questioning the substance of Ashdown’s testimony when he was on the stand, Milosevic spent considerable time trying to discredit him during his defense case. He never denied that Ashdown told him about crimes in Kosova. His witnesses denied the crimes only in general terms, such as in General Bozidar Delic’s statement that “the Albanian population in various villages was never targeted by the army.” Milosevic’s defense was that Ashdown was a liar and he spent substantial time trying to prove it, a sign of the importance that he attached to his testimony. Milosevic called on one of his top generals for this purpose.

M i l o s e v ic Was Wa r n e d   39

General Bozidar Delic, commander of the 549th motorized brigade in the Prizren and Djakovica areas during the war, testified that Ashdown had not been in a position to see what he described on either occasion. Milosevic never raised this issue when he cross-examined Ashdown. When Nice objected, the accused seemed not to understand: “Mr. Robinson, in relation to what Mr. Nice claimed, that I did not raise these questions in good time, I consider that to be inappropriate, because I’m using my own time to refute what Mr. Nice considers to be evidence, and that is precisely the right time to do that kind of thing.” Judge Robinson took pains to instruct him once again: “Let me explain to you Mr. Nice’s point. It is that you did not seek to contradict the evidence in chief given by Lord Ashdown during cross-examination. That part of his evidence was not challenged.” When an accused does not challenge evidence, the prosecution may argue that he has accepted it as true. If the accused waits until the defense case to put on contradictory evidence, he prevents the witness from answering his allegations. It was another example of Milosevic’s lack of competence and the court’s misplaced generosity in allowing his evidence. Milosevic attempted to trick the court with more of Ashdown’s video from September 1998, which began with Ashdown talking to KLA soldiers at the side of a road. It shifted to a scene of Ashdown in a room examining weapons, many of them quite old, while talking to several Albanian men. Milosevic’s translation read: “I promise you we will do everything we can. My purpose here is to try and make sure that the international community notices.” Milosevic claimed, “It continues with Ashdown saying it is a scandal for the international community that they had such old weapons and he would try to make sure they got quality weapons.” Judges Bonomy and Kwon interrupted to say they did not hear that on the tape. Milosevic argued that the Albanians were KLA soldiers and that Ashdown was showing them which weapons were serviceable. In fact two disparate parts of the video had been cobbled together. The first was Ashdown’s meeting with KLA soldiers. The second was Ashdown’s meeting with village elders to view the weapons they had purchased on the black market to turn over to the police. Milosevic’s edited version was meant to fool the court and his audience in Serbia, who would see KLA wherever there were Albanian men. The court refused to accept the video as evidence and admonished Milosevic for using the trial for nonforensic purposes. Milosevic’s duplicity was reflected in his treatment of the video and in his strategy of questioning Ashdown about key parts of his testimony not when he appeared but only during the defense case, when Ashdown could 40  M i l o s e v ic Was Wa r n e d

no longer respond. This deceptiveness was evident throughout the trial for anyone familiar with the historical Milosevic. He counted on the court and his public to take him at face value, with no reference to the way he had lied and manipulated people and events in his rise to power and while he held it. Throughout the trial the judges were confronted with Milosevic’s deceptions, requiring an ever-present alertness to assure that the accused did not undermine the process of justice. Sometimes they succeeded in stopping him; at others they did not. The Man behind the Curtain

Veton Surroi, newspaper publisher, journalist, human rights activist, and member of the Kosovar delegation at the negotiations in Rambouillet and Paris in 1999, revealed Milosevic as the man behind the curtain, who had ultimate control. Reinforcing the testimony of Paddy Ashdown and others to come, Surroi’s evidence supported the prosecution’s charge that Milosevic knew about crimes being perpetrated in Kosova in 1998, proof of which was critical to establishing Milosevic’s command responsibility for the crimes. Shortly after the massacre of the Jashari family in early 1998, Surroi accompanied other Kosova leaders (including Bakalli, the prosecution’s first witness) to a meeting with Milosevic at the “White Palace” in Belgrade. When he confronted the accused with an account of the police massacre of women and children, Milosevic declared it “insane” to think that Serbian police would kill children. Why then, Surroi asked, had an international forensic team been denied access to do an investigation, a question that went unanswered. Surroi testified, “I had the impression that [Milosevic] was very well informed because he explained the details about how the operation had been conducted.” The testimony showed Milosevic to have had intimate knowledge of police operations in Kosova in March 1998. It also showed that he was informed of allegations about a massacre of civilians having taken place. Other witnesses testified to Milosevic’s knowledge of crimes as early as 1996—and his failure to do anything to stop them. A former senior researcher for Human Rights Watch, Fred Abrahams, testified that from 1996 to 2000 he had documented serious and widespread human rights abuses in Kosova, mainly committed by Serbian and Yugoslav forces against ethnic Albanian civilians. Reports of these findings were sent to Yugoslav and Serbian authorities, including directly to the accused—by post, fax, and e-mail. At least one report, “A Week of Terror in Drenica,” was widely published in the media, including the Serbian press. Abrahams testified that he had M i l o s e v ic Was Wa r n e d   41

made numerous attempts to meet with government officials, as well as sending them personal correspondence. In all but one or two instances neither Human Rights Watch nor Abrahams received any response. The widespread distribution of at least half a dozen detailed and welldocumented reports provided additional support for the prosecution’s claim that at a minimum, Milosevic knew about human rights abuses against Kosova Albanians over a period of years, yet did nothing to investigate or stop them. While there was no proof that Milosevic read or knew about any of the HRW reports, that they had been sent to him and his subordinates and in at least one case received broad publicity raised a strong inference that government officials, including Milosevic, had in fact received the reports and at least been generally aware of their content.

Only a month after trial began Milosevic fell ill, requiring a three-week adjournment. The illness followed his confrontation with Lord Paddy Ashdown. It began a pattern of illness following testimony of high-profile witnesses, including Ambassador William Walker, General Klaus Naumann, Rade Markovic (former head of the SDB), the UN envoy David Harland, General Philippe Morillon, and two of Arkan’s paramilitaries. Milosevic’s health had deteriorated sufficiently by August 2002 that a cardiologist recommended longer rest periods between trial days. The court immediately complied, granting the accused four consecutive days off every two weeks, in addition to the weekend. Within the year the schedule was reduced further to three partial trial days a week. The delays occasioned by Milosevic’s deteriorating health prompted a desperate prosecutor to suggest that the court order him to quit smoking, which for this Serb was tantamount to denying him air to breathe. It also showed that the prosecutor had never been a serious smoker and never experienced withdrawal from ­nicotine. Milosevic continued to pick and choose which medications he would take and which doctors’ orders he would follow, ignoring admonitions to exercise, cut down on smoking, and improve his diet. It was later learned that he drank whisky and took nonprescribed medications sneaked into the Detention Unit by his associates. Perhaps most dangerous of all, he insisted on defending himself alone in this very demanding trial, rejecting any suggestion of assistance. To feed his martyr myth, it was necessary for him to risk his health. While his illness controlled the trial schedule, it also controlled him. Experience never taught him that there were limits to his power. In the trial’s early days the prosecution was often at odds with the court 42  M i l o s e v ic Was Wa r n e d

Rule 92 Bis This time-saving rule allows the court to admit a witness’s written statement in lieu of oral testimony where it goes to prove a matter other than the acts and conduct of the accused at issue. Among other things it can include historical, political, or military background and evidence cumulative of other testimony. The rule allows the court latitude to reject 92 bis statements, requiring witnesses to attend in person when there is an overriding public interest in oral presentation, when a party shows that the evidence is unreliable or has a prejudicial effect that outweighs its probative value, or when “there are any other factors which make it appropriate for the witness to attend for crossexamination.” Overreliance on requiring 92 bis witnesses to attend for cross-examination significantly reduces the time-saving purpose of the rule, as happened in the Milosevic trial.

over management of its case. The court dealt the prosecution a blow when it refused to hear an investigator’s summary of thirteen hundred statements by Kosovar victims, because it merely repeated the prosecutor’s opening statement.9 The rejection left the prosecution with a dilemma—how to present the story of a criminal enterprise that involved driving over a million people from their homes, distributed over a large land area where the scale and pattern of the crimes would reveal planning at the highest level, all the way up to Milosevic. Obviously the millions of survivors could not all testify. Nor would it be sufficient if only one, two, or twenty described what happened. The pattern would only emerge as the sites reached a certain threshold. Ethnic cleansing and associated crimes at any one site required the testimony of more than one person. How many was uncertain. To compensate for loss of its summarizing witness, the prosecution introduced a substantial number of written statements in lieu of oral testimony and reduced the scale of its case. From the thirteen hundred witnesses interviewed it selected fifty, five for each of ten sites. Rather than present oral testimony from fifty witnesses, which would take considerable time, the prosecution proposed to have one or two witnesses for each site give oral evidence, with the rest admitted in writing. The court said that it would receive evidence from forty crime site witnesses—four for each of ten sites, leaving it to the prosecution to decide how many would appear in person and how many through written statements. The court’s ruling provided additional parameters for written evidence. First, the evidence could not relate to the acts or conduct of the accused for which he was indicted. Since Milosevic did not wield the sword or the gun, evidence of killings, rapes, and other crimes could be submitted in writing. M i l o s e v ic Was Wa r n e d   43

Second, witnesses whose testimony was presented in writing had to appear in court to be cross-examined by the accused, should he so wish. The cross-examination requirement reduced any time-saving benefit of submitting written statements in lieu of oral testimony. Because crossexamination time was considered part of the prosecution’s case, Milosevic could devour the prosecution’s case by insisting on cross-examining every 92 bis witness (which he pretty much did) and taking as long as the court would allow. When the prosecution raised this concern, the court dismissed it, saying that it was the court’s job to control cross-examination. As it turned out, the court regularly admonished Milosevic for irrelevant, repetitive questioning and speechmaking and threatened to curtail his cross-examination. It rarely did. Instead the judges frequently extended Milosevic’s time beyond the forty-five to sixty minutes allotted. Eventually, but not until the Bosnia and Croatia phase of the case, the court ameliorated these consequences in certain respects. It accepted some written statements without crossexamination and began to count the prosecution’s time separately from Milosevic’s cross-examination. There were other unhappy consequences of the court’s ruling and the prosecution’s need to abbreviate victim evidence: the majority of victim witnesses were not able to tell their stories in court; the public learned about most crimes through Milosevic’s cross-examination; and there was a heightened appearance that Milosevic was controlling the trial. In any leadership case, testimony about the crimes is more attenuated than in cases involving direct perpetrators. The focus in a leadership case is on linking the crimes to the leader, the one who planned, organized, or issued the orders. But while the focus is on the leader, one must never lose sight of the victims—or let the court forget them. They, after all, are the reason for the trial.

Despite Geoffrey Nice’s plea in early April 2002 that the court should not set a time limit for concluding its case, the trial chamber ruled that the case must end within one year, by 10 April 2003. Anything longer could affect the ability of the accused to defend himself, as well as the court’s ability to reach a judgment. Despite computer programs and prosecution charts connecting evidence to charges, it remained a challenge for the judges to maintain a coherent view of the evidence. It was also important to assure that the evidence was comprehensible to the victims and to the greater public, although the judges did not assume this responsibility.10 44  M i l o s e v ic Was Wa r n e d

Citing “incurable prejudice to the prosecution,” the chief prosecutor sought to appeal the trial chamber’s deadline. Del Ponte argued that the trial chamber had exceeded its authority and infringed the prosecution’s rights. She acknowledged that the trial chamber has a certain amount of discretion to determine “the time available to the prosecutor for presenting evidence.”11 Such power cannot interfere with the prosecution’s right to fully present its case in the manner it deems fit, the chief prosecutor argued. Rules must be interpreted to promote the overarching principles contained in the tribunal’s statute, in this case the principle of prosecutorial independence. She concluded that the trial chamber had abused its discretion: “It is apparent that if the prosecution is forced to present its case within an unreasonable period of time, the only possible consequence is that the quality of the prosecution’s case will suffer, which, in turn, will impact on the quality of the Chamber’s final decision.” The Milosevic case was the largest to come before the tribunal, spanning ten years and three armed conflicts. As the prosecutor noted, “Only one of the incidents contained in the Kosovo indictment, Racak, would justify a prosecution by itself, and would ordinarily involve months of presentation of evidence.” To face “a rigid and arbitrary deadline” would force the prosecution to drastically reduce its evidence, “not to improve or make more efficient the presentation of its case, but merely to meet the deadline.” This, the prosecutor claimed, would cause it irreparable harm and violate its right to a fair trial. The appeals chamber did not agree. It dismissed the prosecution’s request on a technicality and held that the trial chamber was within its authority to set an end date for the prosecution’s case. The appeals chamber noted that the lower court had promised to review the time limit in light of unforeseen circumstances. Judge Claude Jorda, writing for himself, Judge David Hunt, and Judge Fausto Pocar, acknowledged the particular difficulty of managing a case where an accused has expressed his intention to avail himself of every opportunity to “speak in the interest of truth” and “to make a comment.” “It does not need any particular degree of foresight to see that, even with the Trial Chamber exercising stringent control, the accused’s cross-examinations may, deliberately or otherwise, seriously erode the time available for the prosecution case.” While upholding the trial chamber’s authority, the appeals panel appeared also to be sending a cautionary message.

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T h e L e a d-u p to Wa r Chapter 3

Milosevic’s Back Channel for Control

Baton Haxhiu, a founder of the independent newspaper Koha Ditore in Kosova, and an award-winning journalist, took the stand as a 92 bis witness to be cross-examined by Milosevic. Haxhiu’s written statements provided background on repression and violence in Kosova, leading to the KLA’s creation and the state’s retaliatory actions against civilians. He testified, “[T]he Serbian regime and the police had for years humiliated the Albanians and had assaulted their dignity. They had entered into every home. . . . There was the pressure of murders, of torture, and of crimes committed by [Milosevic’s] police.” He described how Albanians were forced out of schools and universities in the early 1990s and had to be taught in private homes. When the Sant’Egidio Community, supported by the Contact Group, brokered an agreement in 1996 to allow Albanians to resume the use of educational buildings, Milosevic characteristically did nothing to implement it.1 In October 1997 students in Pristina took to the streets for a peaceful demonstration. Haxhiu testified, “I said after the unnecessary brutal intervention of the police against the students who were staging peaceful demonstrations, then I didn’t see any other way out than the further radicalisation of the situation in Kosova.” Haxhiu said that he first heard of the KLA on 26 November 1997.2 He did not see more than a hundred KLA soldiers at that time, but the organization grew dramatically when Serbian police massacred whole families. “After the Prekaz and Likoshan massacres [in the Drenica valley in early 1998], the revolt spread out all over Kosova and . . . they rallied around this armed group which was called KLA.

We think that this was the first step to restore a lost dignity and [end] the . . . Serb occupation of Kosova. And the growth in number of the KLA is due to the murders perpetrated against children, women, elderly. This is the response of every Albanian who thought that some resistance should be put up to the Serb regime.” The State Security Service (SDB) brought in Haxhiu for an “informational interview” after he wrote an article about the KLA. It was the first of three contacts he had with the SDB, including its chief, Jovica Stanisic, in which the police proclaimed their interest in finding a way to avoid civil war.3 Haxhiu gave them contacts for potential negotiators who might influence the situation. He personally felt that active resistance was necessary, rather than the passive resistance of Ibrahim Rugova and his LDK party, but that violence against the might of the Serbian state was suicide. “We had tens of arguments why we should enter into dialogue. . . . And I think this dialogue did not start because people around you didn’t want that to happen,” he told Milosevic. According to Haxhiu, the people around Milosevic were hardliners. “Stanisic said that we won’t accept the option you offered, which was Kosova Republic [within the FRY]. He said there is no one around Milosevic who will accept this alternative. . . . But he also said that, ‘I will personally see to it that you have your university and academy. But as to the status of Kosova Republic, forget about that. There are nationalist people around Milosevic who will invoke a war if you ask for that.’ ” Two obstructionists, Gajic and Hadic, accompanied Stanisic to a later meeting in Mahmut Bakalli’s apartment. They threatened to burn 463 villages if the Kosovar Albanians did not give up the options they advocated. Stanisic stood by without objecting. While Milosevic blamed the radicalization in Kosova for war, Haxhiu held to his position: “[It was] the lack of will on your staff to solve the problem of Kosova. That’s clear. You personally dramatized and made an icon out of Kosova as a problem, and the obstacle was here.” Haxhiu’s testimony exposed dissension in Milosevic’s regime and inner circle over how to handle Kosova. It led Milosevic to establish an alternative chain of command reporting directly to him while circumventing the army’s “doves.”4 It also led to the replacement of Stanisic and others opposed to the war option. Zoran Lilic, Milosevic’s political placeholder, would soon confirm Milosevic’s opposition to finding a peaceful solution.5

Milosevic’s hubris led him to fall into a trap of his own making when Colonel John Crosland, British military attaché to Belgrade from 1996 to 1999, testiT h e L e a d-up to Wa r   47

fied that Milosevic had established an alternative chain of command within the army to bypass officers opposed to military action in Kosova. The more malleable officers reported directly to Milosevic and carried out his bidding without the knowledge of their superiors. To insiders the illegal arrangement was known as the Joint Command, providing an air of legitimacy. In fact the Joint Command was Milosevic’s vehicle for directly controlling the Yugoslav Army (VJ) and MUP in Kosova. Milosevic was the Joint Command. Crosland stated that both army and police forces engaged jointly in an anti-KLA campaign in 1998 and 1999. According to Crosland, a military officer with thirty-five years’ experience, the campaign was counterproductive because it used excessive force focused largely on the civilian population. The Serbian antiterror campaign, he said, resulted in hundreds of villages burned, crops wantonly destroyed, businesses routed, and mosques damaged. Crosland lodged objections with General Momcilo Perisic, Army chief of staff. During lengthy conversations with Perisic and General Dimitrijevic, his regular VJ contact, it was “quite clear they were unhappy with how the operations were being organized,” he testified.6 Yet the generals said they were powerless, because Milosevic had set up an alternative chain of command— from the VJ field commander, Nebojsa Pavkovic, directly to Nikola Sainovic, Milosevic’s chief Kosova advisor, to Milosevic himself. In October 1998 Milosevic removed Perisic as head of the VJ and replaced him with General Dragoljub Ojdanic. Pavkovic was promoted to commander of the Third Army.7 Milosevic characterized Pavkovic’s actions in 1998 as those of a field commander who must react to concrete situations as they arise, not the rogue officer directly carrying out Milosevic’s orders, bypassing his superiors. Crosland replied, “I never said that a field commander shouldn’t act on his own initiative. Of course he had to. What was indicated by your general staff was that it was outside the chain of command. . . . They felt they no longer had control of what was going on in Kosovo. They indicated that Pavkovic was acting [without their approval].” In a revealing question, Milosevic asked Crosland, “Is it clear to you that his reaction to the situation on the ground must be and was in conformity with orders given down the chain of command? If it was outside, he would have to bear the consequences. I maintain he wasn’t acting outside the chain of command.” Crosland responded, “In that case, you and Pavkovic must be responsible for what happened in Kosovo—the massive destruction of the civilian infrastructure.” Milosevic’s admission reinforced the prosecutors’ contention that Milosevic fully controlled actions in Kosova, including attacks on civilians forbidden by international law. 48  T h e L e a d-up to Wa r

Milosevic did not deny that Pavkovic’s actions were part of a plan he approved as head of the Supreme Defense Council.8 Nor did he disavow tactics that violated the Geneva Conventions. While claiming that there had been no attacks against “undefended” villages, Milosevic asked rhetorically whether it was not legitimate to attack villages from which there was firing at troops. Crosland responded, “You are not entitled to fire artillery and antiaircraft weapons against villages. . . . You used these time and time again.” Where force against an insurgency is permitted, it must be proportionate to the threat, and exercised so as not to target civilians and noncombatants. The prosecution introduced a letter that Perisic sent to Milosevic in July 1998, strongly protesting Milosevic’s use of the Yugoslav army outside official channels, its subordination to the Serbian police, and the appropriation of army equipment for use by the police. General Perisic also objected to Milosevic’s use of the VJ against the KLA without an official declaration of a state of emergency or designation of the KLA as a terrorist organization. As subsequent testimony would show, Perisic was not alone in his objections to the favoritism that Milosevic had shown for the MUP at the army’s expense. For years he had treated the Serbian police as his private army, assuring that they were better armed and equipped than the VJ, even conferring military titles on them. The dissatisfaction of VJ officers was one factor leading Milosevic to set up an alternative chain of command, answering directly to him. Rather than probe to discredit the substance of Crosland’s testimony, Milosevic, as he did repeatedly throughout the trial, tried to discredit Crosland himself, asking whether it seemed plausible that the chief of the army general staff would talk about such things to a foreign general. When Judge May told him he had missed the point, Milosevic suggested that Britain too had assumed the right to protect dependent territories thousands of miles away, a reference to Britain’s war with Argentina in 1982 over the Falkland Islands. This irrelevancy was too much for Judge May, who interjected, “You have missed the point—the destruction caused by the use of artillery against villages; the disproportionate response by your forces against the KLA. This has been the point throughout the trial. It is not one you seem to have grasped.” Milosevic Plays at Negotiating

In the spring of 1998, under international pressure, Milosevic appointed a team to negotiate on issues underlying increased violence in the province. Veton Surroi, a member of the Kosovar team, testified that while people from T h e L e a d-up to Wa r   49

Milosevic’s inner circle attended the meeting, “They had no decision-making power. It remained with the man they considered their boss.” Surroi said there were no follow-up meetings. Milosevic did not challenge this, though he previously maintained that the FRY team had made itself available for eleven meetings to which the Kosovars did not come. The Kosovar team demanded the presence of international mediators, which Milosevic refused, based on his position that Kosova was an internal matter for Serbia and the FRY. To the Albanians the offer of negotiation was a sham. As the situation in Kosova heated up during 1998, international actors, including NATO, the UN, the United States, and the EU, began to take notice. Only three years before, the Dayton Accords ended fighting in Bosnia and Croatia. Kosova, not taken up at Dayton, remained a powder keg almost certain to explode into yet another war. One of those sent to defuse the situation was General Wesley Clark. At the end of 2003 Clark came to the tribunal to testify about his nearly one hundred meetings with Milosevic over the span of a decade. His testimony was riveting. Clark testified on 15 and 16 December 2003 in closed session to allow the United States government to vet his testimony before it was made public. As it turned out, nothing was excluded. The court ruled NATO bombing off limits for cross-examination, though Milosevic was permitted to raise the issue with other witnesses. It is likely that the United States or NATO required this unfair condition. Milosevic should have been allowed to question Clark about NATO bombing of locations that the prosecution charged Serbian forces had destroyed. The court was certainly able to protect matters of national security, but the United States or NATO might not have allowed Clark to testify at all without the restriction. As NATO commander the general was involved in more than a year of negotiations that ultimately failed to prevent war in Kosova. The accused contended that the FRY, and he as its president, took legitimate action against terrorists, as is the right of all sovereign states. General Clark did not agree that the members of the KLA were terrorists. He testified that Serbia had subjected the Kosovars to extreme repression for a decade, including selective killings, and had cut off all possibility for a political solution. Asserting that the issue was the police and army’s disproportionate use of force, Clark said, “I was trying to explain to General Vlastimir Djordjevic, head of the RDB [Public Security Division of the Serbian Ministry of Interior]. The appropriate way to have dealt with this would have been not through the use of force, but through the use of dialogue and restraint, because it’s simply a matter of military history that when you use force in an effort to restrain 50  T h e L e a d-up to Wa r

movements like this that have broad popular support, it’s not going to work. Not only is it illegal, but it’s also ineffective. And Djordjevic had no answer. He was obviously operating under instructions.” Clark referred to the attack on the Jashari family compound in early 1998, recounted to him by President Kiro Gligorov of Macedonia, whose state, abutting Serbia and Kosova, was approximately 25 percent Albanian: “President Gligorov . . . warned me that this is the kind of incident . . . these Albanians will simply not tolerate. It was murder for these people in this family compound. Most of them were unarmed, they were not resisting, they were simply killed.” The massacre incited greater Kosovar resistance and an even more disproportionate response. By late summer and early autumn of 1998, Serbian police actions in Kosova had driven 300,000 to 400,000 people from their homes, many living in the woods. With winter approaching, international actors feared a humanitarian disaster. In a negotiating session aimed at withdrawing Serb forces to avert the impending disaster, General Clark asked General Djordjevic to point out the location of KLA forces on a map. The prosecutor asked about their conversation: nice: In the course of your discussion with Djordjevic and in the marking of the map, was it possible to count the number of alleged KLA people concerning Djordjevic? clark: Yes, we added up these numbers and they totaled 410 KLA, according to Djordjevic’s analysis. nice: Did you raise that with him; and if so, tell us what he said. clark: Well, I certainly did. I said that you’ve forced . . . 350,000, 400,000 people out of their homes; you’re trying to destroy the province to get at 400 people. He said, “We were within two weeks of killing them all. Why did you stop us?” And I said, “Because you’re targeting a civilian population and it’s creating a humanitarian catastrophe for your own people.” The army had sent twenty thousand additional troops to Kosova, one-third of its capacity. In addition to the 6,500 regular police assigned to the province, 13,000 special antiterrorist and special combat forces had been deployed. Clark recounted a chilling incident with Milosevic that shocked him and General Klaus Naumann of NATO. It occurred during a relaxing moment following intense negotiations in October 1998. The parties had reached an eleventh-hour agreement to pull back FRY forces and avoid NATO bombing and were waiting for the formal agreement to be typed. Deputy FRY Prime Minister Nikola Sainovic, whom Milosevic would soon appoint his represenT h e L e a d-up to Wa r   51

tative in Kosova, expressed concern that Albanians reproduced at a higher rate than the Serbs. He and Milosevic indicated that a permanent solution to decrease the Albanian population would come in the spring. Clark drew the picture for the court: “[President Milosevic] turned to me and said, ‘General Clark,’ he said, ‘We know how to handle these murderers, these rapists, these criminals.’ He said, ‘We’ve done this before.’ I said, ‘Well, when?’ He said, ‘In Drenica in 1946.’ And I said, ‘What did you do?’ He said, ‘We killed them.’ He said, ‘We killed them all.’ I was stunned at the vehemence with which he spoke, and I just looked at him. General Naumann looked at him, as I recall, and Milosevic then said—then he qualified his statement. He said, ‘Of course we did not do it all at once. It took some time.’ ”9 Clark realized that Milosevic had no intention of honoring the agreement to pull back troops from Kosova. Until Clark and Naumann insisted, he had no intention of even signing the agreement. On 25 October 1998, with planes on the runway, NATO told its troops to stand down. The agreement between Milosevic and the OSCE and NATO required Serbia to stop its campaign against the Kosova Albanians, reduce army and police forces in Kosova to their normal level, and allow international observers into the province. The tribunal heard from the head of the Kosovo Verification Mission (KVM), the American ambassador William Walker; his deputy, General Karol Drewienkiewicz; and Colonel Richard Ciaglinski. All said that the KVM never had a chance of preventing war. In three days of direct testimony General Drewienkiewicz provided a detailed account of the period leading to the Kosova war. The general’s testimony was a litany of frustrations with Yugoslav and Serbian forces, who appeared little interested in preventing full-scale war. While the KLA was not a party to the agreement, KLA leaders agreed to a ceasefire, a promise they also failed to heed. Serbian forces responded disproportionately to every KLA action against the police. In December they tested the waters with a series of small-scale attacks. When there was no international response, Serbia believed that it had its green light. After the KLA killed three police officers in January, Serbian forces retaliated by attacking the village of Racak, killing ten KLA soldiers and forty-two noncombatants. Another massacre in Rugova, where police killed twenty-five Kosovars two weeks later, was overshadowed by international outrage over Racak, considered by many “a turning point” in the international response to Serbia’s escalating violence over the last year. General Drewienkiewicz and Colonel Ciaglinski testified that the OSCE mission was doomed from the outset. The KLA violated the ceasefire throughout the period of KVM presence. At the same time, Milosevic kept his with52  T h e L e a d-up to Wa r

drawn forces close to the border. He continued to increase and deploy forces within Kosova from November 1998 to March 1999, until he had effective control of the province. By 24 March 1999, the day NATO began bombing, Serbian forces were sufficiently strong to displace 90 percent of Kosova’s Albanian population within a short time. The KLA was unable to stop them. While Milosevic claimed that Kosovars were not forced out by Serbian forces but merely displaced as a natural consequence of war, survivor witnesses maintained that they had been rounded up and deported. Ciaglinski’s testimony supported their claims and all but destroyed Milosevic’s defense that ethnic cleansing of Kosovars was not planned in advance. Shortly before the KVM pulled out of Kosova on the eve of the NATO bombing, an unnamed senior Yugoslav army officer told Ciaglinski of FRY’s plan to eliminate the KLA. The officer, whose identity was protected by the court, showed the colonel on a map where the offensives would take place. The operation, which had to have required “a great deal of planning and coordination,” was designed to permanently eliminate the KLA. After his presentation the officer concluded with a statement that the colonel found disturbing, “And when we have finished dealing with the KLA, we will remove all Albanians from the territory of Kosovo forever.” With that he disclosed the point of the whole “antiterror” operation, which became obvious when Serbian forces began the systematic and coordinated expulsion of Albanians from Kosova before the first NATO bomb fell. The anonymous officer, who Milosevic’s team discovered was VJ Colonel Milan Kotur, would later testify for Milosevic, denying Ciaglinski’s accusations. Ciaglinski understood from the officer that the campaign would be a coordinated action of the army, police, paramilitaries, and special forces. “We are only saving NATO and you a job, because if we don’t deal with the KLA and Albanians, you will have to sometime in the future,” he quoted his confidential source. The colonel informed his superior, General Drewienkiewicz, of the conversation, but the general “chose not to believe” him. This was at a time when a lot was happening, including an incident when two verifiers had been shot at. In support of his dramatic claim, Ciaglinski described indications on the ground which led him to believe that FRY was planning a spring offensive: (1) Troops were deploying outside barracks in violation of the October agreement. (2) Conscripts were retained in Kosova after their tours of duty expired and before replacements arrived. (3) Military supply columns were entering the province. (4) Trains arrived with new tanks which were driven to places throughout Kosova. (5) Incoming equipment was of higher quality. (6) More T h e L e a d-up to Wa r   53

police entered the province; they were well equipped, trained, and aggressive. (7) Hardliners replaced more moderate Serbs who dealt with the KVM. (8) Serbian forces expanded control along the border. (9) Garrison areas became huge and the KVM was denied access. (10) Serbian forces increased their aggressiveness toward the verifiers. By the time the KVM left Kosova on the eve of NATO bombing, Serbian forces had effective control of the province. Kosovar citizens had no room to move. Milosevic demanded that the court secure the attendance of the unnamed army officer. “I demand of you that the witness who was mentioned who allegedly gave information should be heard here. And you shall issue all guarantees that he will not be detained. I’m asking that he be protected. He was smeared, saying he supplied information to the enemy. I’m asking that the witness be heard here with all protections for secrecy.” This may have served to threaten Colonel Kotur, as supplying information to the enemy constituted treason. Judge May responded that the accused could submit a written application and it would be considered, a procedure in which Milosevic refused to engage. He had other ways of uncovering the witness’s identity. Milosevic demanded of Colonel Ciagliniski whether a state has the right to protect itself against terrorists. While agreeing that it does, the colonel asserted that it cannot use disproportionate force. He defended his use of the word “insurgents” for the KLA because many members were local militia defending their families and property. While there were terrorists among the KLA, he said, the label came to be used for all Kosovars, further fueling tension. Ciaglinski described a conversation with Serbian forces after their attack on a doctor’s house where KLA members had been treated. The area looked as if “a nuclear bomb had been dropped.” The doctor and at least one other civilian were killed. When Ciaglinski confronted the soldiers about attacking a house used as a medical facility, the soldiers acknowledged that they were aware of its use, but considered it a legitimate military target because KLA soldiers were treated there. The soldiers were either unaware or unconcerned that medical treatment facilities are protected under the laws of war, regardless of who is treated. The colonel corroborated General Drewienkiewicz’s testimony that Serbian and FRY authorities had obstructed the KVM from the beginning. Milosevic’s response was an innovative interpretation of the October agreement. He claimed, since the agreement only permitted the deployment of three units, that the KVM could only inspect those three units. The colonel responded, “It says we have full freedom of movement. It doesn’t say those are 54  T h e L e a d-up to Wa r

the only units we can inspect. . . . Additional units . . . must be returned to Serbia. How could we verify that unless we went into your barracks?” Despite aggressive questioning, Milosevic was unable to alter the picture drawn by the KVM officers of Kosova as almost completely under control of Serbian forces on the eve of NATO bombing. A further effort to paint the KVM as an advance force for NATO was similarly ineffective. When asked how he explained that the largest number of sites hit by NATO were also sites visited by the KVM, Ciaglinski replied that this was because they were military sites which the KVM had been placed in Kosova to inspect. He also reminded Milosevic that NATO overflights were an agreed part of the verification mission. Prosecutor Confronts Trial Chamber

After three months of trial Nice laid out the schedule for the remainder of his case on Kosova. He informed the court that it would not be possible to complete by the chamber’s deadline (26 July 2002). That prompted Judge May to remind counsel that he had unsuccessfully appealed the overall deadline for his case. “What we wish to see is some acknowledgement you are working towards it. When I see a list of . . . eighty to ninety witnesses [you have yet to call], I am drawn to the conclusion that no attempt is being made to comply with the order.” For the first time in the three months of trial, the otherwise unflappable Nice took umbrage at Judge May’s characterization of the prosecution’s case. “I am inclined to be offended by it,” Nice said, informing the court that he had shielded it from the harsher feelings of other prosecution team members. Though Judge May interrupted to ask him not to be offended, Nice reviewed the steps he had taken to reduce his case, while still fulfilling his duty to prove the charges. “We have worked as hard as we can to meet a timetable the entire prosecution team thinks is unworkable.” Nice argued that the chamber had provided no explanation for limiting proof of the Kosova charges to ninety days. If the prosecution’s case is so limited, he concluded, he would not be able to offer evidence on half of the killing sites (six). Nor would he argue for conviction on charges that were not supported by sufficient evidence. Nice also stated that the prosecution had so far used only sixty-seven hours for its case in chief, totaling thirteen full court days.10 Moreover, the prosecution had taken just under six hours with 92 bis witnesses, while the accused took more than twenty-six hours. Nice disclosed some of the difficulties the prosecution faced in a case he called “the largest case of its kind since World War II.” Witnesses were T h e L e a d-up to Wa r   55

extraordinarily reluctant to testify. Over time people were becoming braver, though not necessarily those close to the Milosevic throne. “Cases like this would be easy to prove if one member of the inner circle was able to come and give accurate evidence of what happened,” Nice argued. “The case could be almost proved with one [such witness]. It is not like that. The closer to the accused, the more difficult it is to approach and to use [the witness].” Nice referred to an anomaly of the tribunal’s more adversarial system requiring a party to “take the witness in toto” without the ability to disavow some of his testimony. Yet the closer a witness is to the crimes, the more likely he is to distort his own involvement. This would indeed turn out to be a problem. The prosecutor suggested that the difficulty might be ameliorated if the court called certain witnesses, who would be more likely to respond to a court summons than to persuasion by the prosecution, though the court’s power to compel attendance was limited.11 Court witnesses are subject to cross-examination by the prosecution and the defense, providing an opportunity for more complete testimony. While not ruling on any of the issues raised by the prosecutor, the court for a time appeared more sensitive to difficulties encountered in attempting to prove a case of this magnitude and complexity. Judge May retreated from his conclusion that the prosecution was doing nothing to streamline its case. Nevertheless, when the presiding judge asked how much longer the prosecution needed and Nice replied, “two months,” Judge May concluded that taking this long would delay the start of the Croatia and Bosnia segments until the beginning of 2003, “which cannot happen.” Court and prosecution were struggling with issues not found in the usual criminal trial, nor to such an extent in other trials before the tribunal. Confronted with the man accused of bearing the greatest responsibility for extensive and serious crimes, the prosecution and ultimately the court had to decide the minimum evidence necessary to prove such a case. As Nice said, one insider who could testify that the crimes were part of an overall strategy of ethnic cleansing might be enough. So would a confession. Neither was likely to be forthcoming. Nor was there any legal standard providing that ten massacres indicate a pattern, while six or eight or nine are coincidental. In the Kosova case, unlike in Bosnia and Croatia, the prosecution also had to prove the crime base—murders, deportations, rapes, etc.—because it was the first Kosova trial at the tribunal. The prosecution could not draw from facts already adjudicated in other trials. As discussed above, the prosecution

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sought to keep crime base evidence to a minimum by submitting most of it through written witness statements. Beyond questions concerning the sufficiency of the legal evidence lay questions about what survivors and the general public needed. The larger purpose for ICTY trials to contribute to the restoration and maintenance of peace, recognized in the tribunal’s founding documents, was in danger of being lost under the practical pressures of managing a case of such magnitude.12 To one degree or another survivors need to see justice done (however imperfectly) and to have their reality confirmed. The larger population needs to work toward a common understanding of history, and to have enough information to stimulate reflection, whether about events that happened or those that might be prevented. The more testimony was restricted, the less these nonforensic interests were addressed. While it is debatable whether a criminal trial is the place for this, a strong argument can be made that these interests have particular relevance in international war crimes trials. They constitute a significant part of the historical record, guarding against revisionism and forgetting, two pillars of impunity that are a source of grave injustice to victims.13 The trial’s length in court days was substantially less than the four-year period during which the trial took place, owing to the abbreviated schedule of in-court days, ultimately reduced to three partial days a week because of Milosevic’s poor health. The trial was adjourned for most of 2004 with a three-month recess between the prosecution and defense cases, extended to seven months as a result of Milosevic’s illness and a witness boycott to protest the court’s appointment of counsel to represent Milosevic. In fact the court heard evidence on a total of thirty-three partial days in all of 2004. The accused obstructed every step that the court and prosecution took to shorten the trial. Milosevic saw no benefit in ending a trial that provided him a stage on which to present his worldview. When the trial ended all he could look forward to was writing his memoirs in a prison cell. Milosevic’s actions aside, the case consisted of massive crimes committed over a decade throughout three geographic areas and political jurisdictions. The court would also deal with unresolved and complex legal issues, requiring research, written briefs, formal argument before the trial court, and often appeal to the higher court, a process taking months and sometimes more than a year. The trial began before investigation was complete, necessitating case preparation to continue throughout. Belgrade was uncooperative and with-

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held valuable evidence, fearing its use in Bosnia’s lawsuit for damages from Serbia pending in the International Court of Justice. For the same reason, it delayed issuing waivers for present and past government officials to testify before the tribunal. The rush to trial—at the initiative of the court, but not resisted by the prosecution or the accused—resulted in inadequate case preparation, sorely needed by the prosecution after the appeals chamber granted permission to join the cases on Croatia, Bosnia, and Kosova into one trial. There were only twelve days between the grant of joinder and the beginning of the trial. More preparation time would have allowed the prosecution to streamline its case, eliminating crime scenes that it would simply have no time to prove. At the end of the prosecution’s case the court dismissed factual allegations relating to 130 crime scenes as not proven beyond a reasonable doubt. Yet all 66 charges remained. As it was, the three trial teams had been working separately, and there was little time to standardize the indictments. The prosecution might also have eliminated redundant charges, where the same act, such as murder, was charged as both a war crime and a crime against humanity as well as, in some cases, a grave breach of the Geneva Conventions. All of these factors contributed to extending Milosevic’s trial for four years and likely would have caused it to take one more year to reach judgment. As Human Rights Watch concluded in its assessment of the trial, “The total length of actual court time is not unreasonable for a trial of this magnitude.”14 In retrospect, two actions would have had the greatest impact in reducing the length of the trial: the court could have appointed counsel to represent Milosevic early on, preventing his use of coercive tactics like the witness boycott that undermined appointment of counsel during his defense case; and it could have exercised firmer management, strictly adhering to established limits for cross-examination and more quickly and consistently cutting off commentary and repetitive questioning. The March to War

The massacre at Racak on 15 January 1999 was a pivotal event in the inexorable march to war in Kosova and a focus of both the prosecution and defense cases. Nice allowed that Racak could be a case all on its own. The prosecution charged that Serbian forces massacred forty-two civilians at Racak on 15 January 1999, after an operation to destroy a KLA subunit on the village outskirts where nine KLA members were killed.15 Milosevic claimed that the incident at Racak was fabricated by the United States and NATO, who wanted a war to destroy Serbia and continue the process of 58  T h e L e a d-up to Wa r

“Balkanization” of the former Yugoslavia. According to him, fifty KLA “terrorists” died in a shootout with Serbian police.16 The following facts about Racak were agreed on. Approximately one hundred Serbian police surrounded the village in the early morning of 15 January 1999. The VJ was present, though its role was disputed. A KLA contingent was housed on the village outskirts, while somewhere between 50 and 450 civilians were living in Racak at the time. Fighting broke out in the early morning hours, though the parties disagreed over who fired the first shot. At the end of the day fifty Kosovars lay dead, including a fifteen-year-old girl and a twelve-year-old boy. Serbian forces had no casualties. Here agreement ends. The prosecution claimed that forty-two of the dead were unarmed civilians. Milosevic asserted that all were KLA members killed in combat. After the agreement of October 1998 and in the months leading up to the massacre, Serbia and the KLA reorganized their forces while a lower level of fighting continued. By December both sides were escalating. Observers could see that the October accord was falling apart, which would trigger NATO intervention to stop Milosevic’s campaign of ethnic cleansing. At some point Milosevic decided that a little NATO bombing would provide a cover for the mass expulsion of ethnic Albanians: he could say they were fleeing NATO bombs. When the KLA killed three policemen in early January, the VJ liaison, General Loncar, informed the KVM’s General Drewienkiewicz, “We will use tanks and the army, not the MUP, and we will find them.” Through its witnesses the prosecution presented the following facts. At least twice in 1998 Serb forces attacked Racak. In August they burned from sixty to eighty houses, forcing the majority of the population to leave. By January several hundred had returned. The KLA began constructing bunkers and trenches in Racak in December 1998, because control of the village and the roads through it was essential to protecting their supply and communications link to KLA headquarters. In the days before the Racak incident the KLA noticed a buildup of Serb forces around the villages, according to Shukri Buja, KLA commander and a prosecution witness. The KLA went on high alert, advising villagers of the danger. Some chose to leave. Most stayed. The KVM also noted increased activity. In a report on 10 January verifiers stated that tensions remained high in the region as a result of two ambushes against MUP patrols. The VJ presence had increased as well. In the early morning hours of 15 January, Buja testified, Serbian forces opened fire to provoke return fire that would aid in locating KLA positions. The KLA fired warning shots, alerting its soldiers in nearby houses.17 When T h e L e a d-up to Wa r   59

they ran from the houses they were caught in a crossfire, and several were killed. Before the early morning fighting ended, eight KLA soldiers lay dead, with another eight severely wounded.18 The KLA withdrew, taking its dead and wounded, as was its practice. Serbian forces entered Racak and rousted people from their hiding places. Men were separated from women and children, beaten, and ordered to climb Babush Hill. Almost all who did were ambushed and killed by automatic weapons fire from waiting policemen. Those who found ways to disobey the order survived, as did five of the twenty-nine who went to Babush Hill. One survivor, a fifty-two-year-old man named Bilall Avdiu, testified. After ordering him out of the house Serb forces beat him and took his identification. He heard a policeman telling someone on his walkie-talkie that “these are civilians,” and the response: “Kill them all.” With hands behind his head he climbed the hill in a line of men toward a ravine where police began shooting. He fell, unhurt, and lay among the dead for hours before escaping into the woods, where he spent a cold winter night with four other survivors. Avdiu testified that several of his neighbors’ bodies had been mutilated. One man’s heart was cut out, he insisted, to Milosevic’s ridicule. Later Ian Hendrie, a prosecution investigator with years of detective experience, testified that he photographed the wounds, which were consistent with gunshots at close range. In one case the victim’s chest had been ripped open by gunfire, exposing internal organs. It looked as if the heart had been cut out. Other survivors confirmed Avdiu’s account. KVM monitors were about five miles from Racak on the day of the massacre.19 When they heard shooting they moved closer and called General Drewienkiewicz. From their location on the ridge above the village they were unable to see what was happening, according to testimony by the general, who sent Major General Jozef Maisonneuve to investigate. Maisonneuve testified that he saw VJ tanks firing into occupied houses from which no one returned fire. No verifier could see behind the village where the killings in the gully took place, according to General Drewienkiewicz. Maisonneuve watched the VJ and police withdraw. When he entered the village he found civilian villagers and a few KLA. While he saw some dead bodies, his major concern was the wounded. He hurried to get them to hospital before night fell. By the evening of 15 January neither the villagers nor the KVM nor the KLA knew how bad the situation was. The villagers believed that their men, who were marched up Babush Hill under Serbian guns, had been taken prisoner. It was not until next morning that their bodies were found toppled one over another in a gully on the hill. 60  T h e L e a d-up to Wa r

Twenty-four bodies of mostly elderly men lay exposed among the weeds and melting snow. No weapons were visible. The men were dressed in layers of clothing against the winter cold. Some wore the white skullcap of Albanian Muslims. A number wore Wellington boots, fit for gardening but not for making war in the woods and mountains. Some appeared to have been shot at close range—mostly in the head. Having viewed the bodies in the gully, Maisonneuve demanded a meeting with the VJ liaison, Colonel Krsman Jelic. The VJ sent Officer Petrovic instead. “I was incensed after seeing the damage and dead bodies,” Maisonneuve testified. “I was coming to take the brigade commander to task and to confirm his forces were involved. I mentioned the Tribunal. Petrovic said the MUP had done the operation, but it was supported by tanks and praga from the army.”20 About three weeks later Maisonneuve finally met with Jelic, who acknowledged that VJ forces were operational at Racak, but denied that they were in a joint operation with the MUP. They were acting individually and simultaneously, he said. Maisonneuve called his explanation “far-fetched.” When real bullets are being fired, he said, coordination is essential. He assessed the operation as one against a “very lightly defended locality.” The MUP and VJ used “indiscriminate and overwhelming fire against civilians.” The issue of VJ involvement was important for Milosevic. At the time he was president of the FRY, not Serbia. Milan Milutinovic, as Serbia’s president, was de jure responsible for crimes committed by the MUP. The accused was de jure responsible for those committed by the VJ. Under the guise of law Milosevic attempted to hide his de facto power over both the FRY and Serbia. Milutinovic was a puppet of Milosevic. When Milosevic moved from the Serbian presidency to the FRY presidency, he anointed Milutinovic to fill the position he was leaving. Milutinovic never did anything without Milosevic’s direction. Yet the accused continued to use the law as a screen to provide him with deniability in the international arena. Despite urging from his army chief of staff (Perisic), politicians such as Zoran Lilic, and the chief of state security (Stanisic), Milosevic had resisted declaring a state of emergency. Perisic believed that a declared state of emergency would allow the VJ to step in, subordinate the MUP, and quickly resolve the “insurrection.” Without the declaration, however, such use of the VJ was unconstitutional. Therefore, in Milosevic’s created universe the army (and he as its commander in chief ) was not involved. As a result, Milosevic’s witnesses—from the VJ and MUP—insisted that Racak was a police operation. The VJ was on-site only to fulfill its function of protecting the border and communication links, they said. T h e L e a d-up to Wa r   61

Later in the morning of 16 January the OSCE head of mission, William Walker, and General Drewienkiewicz arrived in Racak, as did the international press. On entering the village they saw the headless body of an elderly man. A little way from the village, in a nearby gully, they found dozens more bodies, apparently all killed by gunfire. None had weapons and all were wearing civilian attire, including slippers and Wellingtons. After touring the site and talking to villagers who witnessed or survived the shootings, Walker issued a written statement to the media: “I do not have the words to describe my personal revulsion, or that of all those who were with me, at the sight of what can only be described as an unspeakable atrocity. . . . Although I am not a lawyer, from what I personally saw, I do not hesitate to describe the event as a massacre, a crime against humanity, nor do I hesitate to accuse the government security forces of responsibility.” He demanded the names of those involved and an ICTY investigation at the invitation of the FRY government. In response the government declared him persona non grata and gave him forty-eight hours to leave the country, an order later rescinded under political pressure from the OSCE. Milosevic’s Defense: Racak Was an Antiterrorist Operation

Milosevic’s defense to the prosecution’s Racak case was repetitive, disorganized, and generally unconvincing. Substantial parts of it were secondhand and thirdhand hearsay reported by witnesses who, in Judge Bonomy’s admonition to the police chief of Urosevac, were “not actually involved in what took place, didn’t actually kill anybody, but we’re going to hear what you heard about the incident.” Documents were missing, incomplete, or prepared specifically for the trial, rendering them worthless as evidence. Following his practice, Milosevic refused to take the necessary steps to qualify his forensic witness, Slavisa Dobricanin, as an expert, leaving his testimony of questionable worth. The court expressed frustration with the accused’s flagrant disregard for the expert witness rule and warned him that it was seriously considering an order to have him comply in the future. Judge Bonomy asked: “Where does the sloppiness end? How do we keep some sort of orderly control over the process that we have ultimately to engage in in reaching a rational judgement in this case? And we want to do that on the basis of the best possible presentation of the evidence and that is not happening in the conduct of Mr. Milosevic’s own case. So how can we be assisted unless we apply the Rules and make him adhere to the Rules?” Rather than call Goran Radosavljevic, the officer who commanded MUP forces on

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the ground at Racak, Milosevic turned to loyalists such as Bogoljub Janicevic, the police chief of Urosevac and a longtime member of his political party, and Dragan Jasovic, a notorious police officer in Urosevac.21 Milosevic attempted to present a document titled the “Chronology of Events in the Village of Racak, 15 to 19 January 1999,” through the assistant minister of the interior Obrad Stevanovic, though the witness had no idea who prepared it or when, and the document was missing its dated signature page.22 During testimony by the investigative judge Danica Marinkovic, Milosevic offered witness statements taken by Jasovic, later reviewed them with Jasovic, then wanted to go over them again when Janicevic testified.23 The court allowed this for the purpose of confirming the authenticity of the documents. Milosevic’s witness list showed that he had no intention of calling anyone who made the statements. The accused’s Racak witnesses contradicted themselves, while responding to the prosecution in remarkably similar ways. One day Janicevic testified that the VJ did not have tanks at Racak, while a day later he said that they had, a contradiction noted by Judge Kwon. He also told the court that the people at Racak were all killed in or near the trenches, where he alleged that their bodies were found. Yet he produced a map made by his subordinate, Milan Lecic, in consultation with him, showing bodies strewn around the village.24 Marinkovic’s testimony also supported this view. Jasovic insisted that he did not know whether police interrogators in Urosevac tortured prisoners. Yet Milosevic later elicited his definite assertion that torture did not occur, because if it had, he would have known. Jasovic was a witness whose memory almost completely failed him when cross-examined. To a long list of questions concerning people he had interviewed, he answered, “I do not know” or “I cannot remember.” It provoked Judge Bonomy to ask if he had a normal memory. Witnesses also made outlandish accusations that undermined their credibility. Jasovic opined, “I don’t know that Serbs committed any crimes against Kosovo Albanians.” Of seven hundred statements he took as a police officer, all concerned Kosova Albanians as the perpetrators of crimes. Though there was no evidence of it, Janicevic testified that Hanumshahe Mujota, the fifteen-year-old girl shot and killed in Racak, must have had a gun, otherwise police would not have shot her: if they had, measures would have been taken against them. In Milosevic’s world there was no need to go farther than the written rules, which he used to hide a myriad of crimes. What actually happened was irrelevant. When Nice produced a document by Janicevic calling

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for the liquidation of terrorists rather than their arrest, Jasovic replied that “to liquidate” means “to deprive of liberty.” Later even he had to agree with Nice that to liquidate means to kill. Serbian authorities accused the OSCE of interfering with the official investigation of the Racak incident by refusing to allow the investigating judge, Danica Marinkovic, to have access to the site. Marinkovic first tried to visit Racak on the afternoon of 15 January but was turned back by fire from the KLA. She collided with General Drewienkiewicz when she insisted on returning to Racak on 17 January with a large police escort. The general considered the size of the escort a provocation, likely to set off further fighting. On 18 January the MUP, with VJ support, forced the situation, removing forty bodies from the mosque where villagers had placed them before burial. Danica Marinkovic was an infamous figure within the Kosova judicial system. She investigated a number of the more controversial crimes before and during the war in 1999. Marinkovic was the judge involved in sentencing Shukri Buja to jail for thirteen years for his part in the peaceful demonstrations of 1981.25 In 1995 the lawyer Fazli Balaj filed a complaint with her that his clients, members of the Kosovar parallel police force, were being tortured in detention. She did not respond. At the tribunal she denied hearing anything about this accusation but said that she generally acted on these kinds of complaints. Judge Bonomy commented that this suggested such reports were routine, eliciting another denial. Then surely she would have remembered the case, he said. Marinkovic testified that according to a paraffin glove test, a forensic tool discredited in the United States and Europe but regularly used in Serbia, showed thirty-seven of the dead had traces of nitrates on their hands, ostensibly from gunpowder. She also stated that the men’s attire—several layers of dark clothing and similar black belts—proved that they were KLA. Nice showed her photographs of the dead, wearing belts of different colors and styles. During her investigation Marinkovic did not question witnesses, whether Serbian police or Kosovar villagers, as this was not “within her remit.” Her duty ended with a record of her observations, she told the court. “The statement taken by officials from citizens, there’s nothing to doubt, and there’s no need to check it, because they were officials who take these statements from citizens in the manner prescribed by law. So there’s no need for any subsequent checks to be made.” The problem was that some who gave statements told the prosecution they had been tortured or coerced into doing so, a not unusual practice in Serbia’s authoritarian state. Dragan Jasovic was the investigative officer. Among Kosovars and human 64  T h e L e a d-up to Wa r

rights activists he was notorious for using torture to elicit information about the KLA, as was the police station in Urosevac where he worked.26 On 16 January, the day after the massacre, Jasovic “interviewed a large number of ethnic Albanians in order to shed light on the events.” All subjects were brought to his office, their statements duly typed, signed, and eventually made available to the tribunal. They identified the Racak dead as KLA fighters. Nice produced videos of three of Jasovic’s interviewees recanting.27 One was a young boy whom the police had subjected to electroshock. He denied providing any information. Nevertheless Milosevic produced a statement allegedly signed by him, identifying a number of the dead as KLA.28 Two other men signed statements prepared by the police after being beaten. Jasovic claimed that no Kosovar was free to say anything against the KLA. The court was disturbed by the prosecution’s use of recanted statements during the defense case. Though they more properly belonged in rebuttal, it made sense to confront Milosevic’s witnesses with them when they were on the stand. The court allowed the prosecution to use the statements for questioning, while not accepting them as evidence. As Nice pointed out, however, the evidentiary problem sprang from Milosevic’s habit of presenting written statements through a third party rather than producing those who made the statements, in which case they could be questioned by both parties.29 The court’s difficulty also arose from its assumption that the FRY state was legitimate, was transparent, and operated legally. With such a state courts may rely on official documents, assured that they have been prepared according to the rules. Not so in a state that uses rules and law as a smokescreen to hide its crimes and for purposes of controlling its population, as the FRY did. In Serbia the fact that a document had an official stamp had no relationship to its accuracy. Though he questioned ninety Kosovar witnesses, Jasovic admitted that he had not questioned any police or soldiers. When Nice asked if that was an appropriate police response given two competing descriptions of events, Jasovic answered, “I can’t give you an answer to the question. . . . [I]t is the superior officers that can give you an answer to that.” Judge Bonomy interjected, “I find that an astonishing answer. You’ve been asked a very simple question. If you have got two directly competing accounts of how an event happened, one saying it was a massacre and the other saying that it was a genuine combat in which people were killed as part of the combat, have the police a duty to investigate these competing accounts; and you say you don’t know the answer to that. Is that what you’re saying to us?” Jasovic responded lamely, “I don’t know.” T h e L e a d-up to Wa r   65

Judge Bonomy also challenged the defense witness Obrad Stevanovic, Serbia’s assistant minister of the interior, over the MUP’s failure to investigate any of its own. “Mr. Stevanovic, I take it that nobody in the MUP thought that it might be worth investigating the activities of the police on this occasion? Nobody found it odd that there was nobody killed on the Serb side and 40 people killed, perhaps more, on the other side, that there were no prisoners apparently taken? No one thought, in the MUP, that that might merit at least a cursory independent investigation, did they?” Stevanovic maintained that as the “Chronology of Events in the Village of Racak” established, the terrorists shot first. It was all he wanted to say on the matter. Judge Bonomy persisted. “Mr. Stevanovic, we don’t even know who made the assessment, never mind have some of the material that indicates how the investigation was conducted. Do you understand our anxiety to see what actually went on following this event to investigate it? And it’s as if the Defence is conducted to dance around the issue and avoid engaging on the issue that the Court really wants to hear about.” Milosevic was puzzled: “Mr. Bonomy, could you help me: What important issue this is that I’ve been dancing around?” The judge responded, “How the conduct of the police was independently investigated following Racak.” Despite the judge’s efforts to clarify, Milosevic did not produce any evidence of an investigation. Stevanovic advised the court to trust the process, since the Serbian judiciary takes over an investigation after the police. Judge Robinson reminded him that there had been no judicial investigation. Bogoljub Janicevic, Jasovic’s superior, added little to Jasovic’s testimony, prompting the court to advise Milosevic that he was wasting time. In fact Milosevic may have harmed his case by giving the prosecutor an opportunity to discredit Janicevic on several important points and to direct the court’s attention again to the existence of the Joint Command through which Milosevic controlled all MUP and VJ operations in Kosova. Janicevic devised the plan for the Racak operation, approved by General Vlastimir Djordjevic, head of the Belgrade MUP. It did not involve the VJ, Janicevic insisted, except to cover the borders and protect communications. According to the witness, the only copy of the plan was destroyed in a fire at the police station in Urosevac caused by exploding NATO bombs. Miraculously, copies of reports by individual officers did survive, because the police, Janicevic said, were in the habit of making copies and taking them home, an unusual practice for lower-level officers. Janicevic was not at Racak when the events occurred. Nevertheless, Milosevic claimed that Janicevic knew everything about it, so Milosevic would not 66  T h e L e a d-up to Wa r

be calling the man in charge on the ground, Goran Radosavljevic. Radosavljevic had told the prosecution that the operation in Racak was a joint effort of the VJ and MUP and that an entity called the Joint Command appointed him to lead it, as well as approving Janicevic’s plan. Both Milosevic and Janicevic denied the Joint Command’s existence. General Djordjevic was in the area and in continuous telephone contact with Nikola Sainovic, Milosevic’s designated representative for Kosova, during the Racak operation. It corroborated evidence Racak was ordered and directed by the Joint Command—in effect, Milosevic himself. Although Walker, the KVM, and the news media called the operation a massacre of civilians, Serbian MUP did not conduct a comprehensive investigation. Kosova Albanians were brought in for “informational interviews,” but no police officer or soldier was questioned. The roughly ninety statements which Jasovic took from Kosovars and which Milosevic produced at trial were challenged by Nice as coerced and unreliable. Moreover, as Nice pointed out and Janicevic admitted, the police “investigation” focused only on whether the people killed at Racak were KLA. The police showed no interest in the “terrorists” who escaped the Racak operation alive. In addition, nothing was ever done with the statements that Jasovic collected. Nor did Milosevic or the government in Belgrade produce a contemporaneous official report on Racak. If one existed, it remained well hidden. This led Nice to suggest that the “investigation” was a cover-up. Judge Kwon elicited the purpose of the investigation in the following question to Judge Marinkovic: “And I noticed most of the questions put to these witnesses are who are the KLA members. So the main purpose of this investigation is to identify the members of the KLA. Am I right?” Marinkovic: “Yes, yes. To identify them and to establish the fact that in Racak there was a major terrorist stronghold.” In other words, the purpose of the investigation was to justify the attack. Besides calling witnesses, another way to determine what happened at Racak was to examine the forensic evidence. Despite Walker’s insistence that the ICTY chief prosecutor Louis Arbour and her team must be allowed to do an on-site investigation, FRY authorities denied them visas. The OSCE organized an independent Finnish forensics team, headed by the Danish doctor Helena Ranta. After her team went in Serb apologists frequently misrepresented her statements to support their position that no massacre happened and the entire event was staged. When an interview with her appeared in a German Swiss publication providing contrary conclusions, the judges decided that they wanted to hear from the doctor directly. In court Ranta stated categorically that the scene had not been staged. T h e L e a d-up to Wa r   67

The victims died where they were shot. Asked whether bodies might have been moved, as it appeared in some photographs, she said that most had been moved at some point, but that it was a natural reaction for someone who finds a body face down to turn it over, to make sure that the person is dead and to determine his or her identity. Though pressed by the accused, Ranta refused to give an opinion on whether the killings occurred in battle or in a massacre. That, she said, is something the court would have to decide. How then, Milosevic demanded, can you describe the events at Racak as the killing of unarmed civilians? The doctor, trained to be precise, corrected his characterization of what she said, “There were no indications of people being other than unarmed civilians. I said nothing more or less than that.” Milosevic accused Ranta of being part of a conspiracy involving NATO, the OSCE, and the KLA that staged the Racak massacre as a pretext for NATO intervention against Serbia. He also challenged her findings because they were based in part on a site investigation occurring ten months after the killings, without the crime scene having been secured. Ranta, who had participated in archeological excavations, said that according to photographs the scene had changed little over time. Members of her team had been able to recover bullets, bullet fragments, and human material from beneath the soil, which assisted in eliminating some hypotheses. Their report also included a review of autopsy reports by Serbian authorities, as well as autopsies that they performed themselves.30 The team compared bullets found at the scene with those recovered from bodies and concluded that they had identical markings. This finding supported the conclusion the people died where they were shot. Though Milosevic called Dr. Slavisa Dobricanin, doctor of forensic medicine at the University of Pristina, who was on Judge Marinkovic’s Racak investigating team, he offered little of substance. Like Marinkovic he concluded that the dead were KLA members because they wore several layers of dark clothing, nitrate traces were found on the hands of thirty-seven bodies, and the bodies exhibited different bullet paths and revealed the bullet wounds not to have been made at close range.31 To Dobricanin this meant that the men could not have been executed, according to his apparent view of how an execution is carried out. But the survivors testified that they were told to go up a gully and were gunned down in the process—with bullets coming from every direction. Dobricanin admitted that fingerprints were taken (which could have compromised the gunpowder tests) from twenty-four bodies but not from the weapons supposedly recovered, a fact that Bonomy found “rather odd.” “In a case like this where you have forty bodies and you are to 68  T h e L e a d-up to Wa r

take fingerprints from every one of these bodies and there’s a dispute about whether this was a massacre or a combat and there are weapons, does it not seem to you absolutely obvious to carry out a comparison between the fingerprints on the weapons and the fingerprints of the deceased people?” When the prosecutor Daniel Saxon pointed out that light-colored clothing was found on some bodies, Dobricanin denied that this confirmed their status as civilians, though he continued to maintain that dark clothing established a person’s membership in the KLA. “They recognized each other, and there was no need for them to wear clothes of special colour.” Later he contradicted himself, “The members of the KLA wore exclusively black, black-coloured clothing or dark clothing if they didn’t have parts of a black uniform.” Dobricanin conceded that he and his Serbian colleagues did not disagree with Dr. Ranta until her press conference of 17 March 1999, where she denied any indications that the victims were other than civilians. He subsequently published an article stating that Ranta condemned Serbs. When Saxon asked Dobricanin to specify an instance of condemnation in Ranta’s press conference, he backed down. “There is no such sentence. . . . But the indirect detrimental consequence of such an opinion was the beginning of the bombing of Serbia and Montenegro.” Milosevic Chooses War

After the massacre at Racak, Generals Clark and Naumann met with Milosevic to secure his agreement for the ICTY chief prosecutor to investigate, which he had so far refused. Milosevic was not cooperative. As Clark had foreseen, he said that he was not going to comply with the agreements he had signed in October. He warned Clark, “We would defend ourselves.” The general replied that his response continued to be disproportionate. “I explained to him that his actions went well beyond any reasonable defence, they were disproportionate, they violated the agreements, and I said that ‘If you persist in this, NATO is going to tell me to start moving aircraft.’ ” Nice asked, “Did you in your exchanges with the accused take a strong line, make reference generally to what he was doing to his country?” Clark replied, “Yes, I put this in terms that he could understand what the consequences would be for him and his international position. I said that, ‘NATO is going to be asking—these leaders are going to be asking what is it that you are trying to do to this country? You forced professors to sign loyalty oaths, you have crushed democracy, you have taken a vibrant economy, you’ve wrecked it. They’re going to be asking, what kind of a leader are you?’” Nice: “What T h e L e a d-up to Wa r   69

did that lead the accused to say and do?” Clark: “Well, President Milosevic became very angry and he then—he claimed that there were no loyalty oaths, that Serbia was a democracy, and he accused General Naumann and me of threatening him. He said, ‘You are the war criminals.’ ” Clark tried to calm Milosevic. He asked about Holbrooke’s report that Milosevic said Kosova was more important than his neck. According to Clark, Milosevic replied, “No, that’s not correct, I said it’s more important than my head.” Clark understood him to mean that Kosova was the key to his political future. The two generals failed in their mission to secure Milosevic’s permission to have the ICTY investigate Racak. The primary issue in the evidence surrounding the incident at Racak was whether it marked a turning point in the implementation of a plan to ethnically cleanse Kosova of its Albanian population, or was rather a legitimate police action to root out “terrorists.” Prosecution evidence strongly suggested that it was an intentional massacre of civilians, part of a well-prepared plan to drive Albanians out of Kosova through violence, fear, and destruction. Milosevic’s response to the prosecution’s Racak evidence provides a good example of his approach to the trial. His willingness to create evidence was apparent in the unsigned, undated chronology of events at Racak. For the most part the accused called witnesses without firsthand knowledge of events, relying instead on people who would say whatever they had been directed to say, regardless of how nonsensical it was, as when Jasovic said that liquidation meant locking people up. They described a scenario worthy of the Keystone Cops: police investigating an alleged police massacre of civilians without ever interviewing police; an investigating judge who said that investigation was not part of her job since she relied solely on police reports. Milosevic’s witnesses contradicted themselves, lost their memories in court, or simply said that they knew nothing. Milosevic and his witnesses treated the trial as a joke. In their willingness to say anything no matter how incredible, they showed contempt for their audience—not the judges, whom they obviously had no intention of swaying, but the Serbian people, who they assumed would believe anything, the legacy of an authoritarian, one-party state where rulers can say that black is white without fear of challenge from the ruled. The habit is hard to break, by both ruler and ruled. Either that, or Milosevic and his witnesses were mocking the proceeding, creating a show for the home audience by ridiculing the trial. Racak made clear that Milosevic was intent on pursuing a resolution to his problems in Kosova through violence, not negotiations. It was the only way he saw to secure Kosova within Serbia and thus his hold on power. The 70  T h e L e a d-up to Wa r

population that supported the insurgency had to be moved out. The international community would never agree to that. Whether or not international negotiators discerned Milosevic’s intention by viewing the buildup of forces and escalation of violence in Kosova, they opted for another round of table talk rather than give NATO the go-ahead after his clear violation of the October accord in Racak. Milosevic used the time provided by negotiations to finalize preparations for his spring offensive, the campaign to rid Kosova of Albanians forever. General Drewienkiewicz testified that the Yugoslav side continued a massive military buildup in Kosova while it participated in the peace process. In fact the Yugoslav military command issued an attack order (produced in court) on 13 February 1999, covering an area of thirteen square miles, including a directive that the KVM must be kept out of conflict areas, a clear violation of the October agreement.32 Negotiations were merely buying Milosevic time. He had already decided on war. Further evidencing his lack of interest in a negotiated settlement, Milosevic did not go to Rambouillet. The conditions for negotiating, Veton Surroi testified, included that participants must have power to reach an agreement. Yet this was not true of the Serbian delegation. When Nikola Sainovic left the talks to consult with Milosevic in Belgrade, Surroi testified, “I asked [Ambassador Chris] Hill why members of the Serbian delegation were being allowed to go to Belgrade and he replied Sainovic had asked to consult with the accused because the accused would make the decisions.” When no agreement was reached in Rambouillet, this scene was repeated in Paris during the final, unsuccessful round of talks. “Milutinovic [the president of Serbia] introduced himself as someone who could assist the Belgrade delegation, but at the final moment, when it came to signing the agreement, . . . he said his boss in Belgrade would have to make decisions and he could do nothing,” Surroi testified. At the conclusion of the Rambouillet talks both sides appeared to have reached agreement on political issues. However, the Yugoslav team lacked authority to negotiate how the agreement would be implemented (that is, to negotiate the military annex to the agreement). Hashim Thaci, representing the KLA, also needed time to persuade his colleagues to accept the KLA’s proposed demilitarization. A three-week hiatus was called before final negotiations in Paris. By 8 March, however, when Ambassador Wolfgang Petritsch, the European Union’s chief negotiator, met with Milosevic, Milutinovic, and others in Belgrade, their apparent willingness to reach a negotiated settlement had T h e L e a d-up to Wa r   71

evaporated. Petritsch testified, “It was Mr. Milosevic who didn’t like [the political agreement] and he decided not to continue the path of negotiation.” When the meeting in Paris convened, the FRY team opposed not only an implementation agreement but also the political agreement to which it had essentially agreed in Rambouillet. Their non-negotiation stance was confirmed during a last-ditch attempt on 22 March to avert NATO intervention when Petritsch and his co-negotiators, Christopher Hill and Boris Majorski, met with Milosevic in Belgrade. Milosevic was aloof and not engaged, according to Petritsch. “My impression was that he had already made up his mind and was not listening.” Cross-examining the ambassador, Milosevic was not shy in admitting that he had ultimate decision-making authority over Kosova. “Isn’t it logical that the delegation [at Rambouillet] should consult the president of the state on questions of paramount importance?” According to the Serbian and FRY constitutions, however, President Milutinovic, who was available at Rambouillet, had greater authority than Milosevic as the FRY president.33 In practice, power followed Milosevic regardless of what the written law said. Petritsch’s testimony pointed yet one more finger at Milosevic as the ultimate decision maker in the Kosova conflict. It also highlighted his failed strategy on Kosova. If Milosevic had signed the Rambouillet accords, including the proposed military implementation, Kosova would have remained a part of Serbia. “The Contact Group and the negotiators took special care regarding the sovereignty and territorial integrity of Yugoslavia. It was written into the Accords on three occasions to make it clear beyond any doubt,” Petritsch testified. While Milosevic complained that the accords’ provision for a final resolution of Kosova’s status in three years based on the will of the people amounted to legalizing the “snatching away of Kosovo,” Petritsch countered that the provision required both sides to agree. Final status would have been based on the will of all the people—Albanian, Serb, and other ethnicities in Kosova.34 Moreover, the negotiators included the Helsinki Final Act in the accords “on purpose,” because it governed any change of existing borders, requiring that it be peaceful and made with the consent of those affected. “This was the guarantee to Yugoslavia to keep Kosovo in Serbia. It was misrepresented in Serbia.” With FRY agreement, Petritsch said, the Helsinki Final Act would have come into force and been the basis for any future agreement between the parties. “You didn’t sign and you must bear the consequences,” he told Milosevic. If Milosevic had signed the Rambouillet accords, non-Albanian ethnic 72  T h e L e a d-up to Wa r

groups in Kosova would have been granted 40 percent of parliamentary power, greatly in excess of their percentage in the population. This provision was inserted to strengthen the ethnic communities, Petritsch testified. Milosevic complained that Belgrade had proposed a bicameral legislature at Rambouillet—with one chamber representative of the entire population, the other providing equality among ethnic groups. This arrangement was accepted by the negotiators and the Kosovars, Petritsch answered, but Belgrade gave up the idea. Milosevic quoted several journalists and commentators to the effect that acceptance of an international force to monitor implementation of the political agreement amounted to occupation of the FRY. The proposed military annex, he claimed, provided that an international force would have “free and unrestricted passage and access throughout the FRY,” including air space and territorial waters. That is correct, Petritsch answered, “This text was taken from the Dayton Accords which you had signed. . . . SFOR has even today the right to use what you have described” for logistical purposes and to gain entry into the territory to fulfill its mission. Under questioning by the amicus, Ambassador Petritsch pointed out the obvious: today is “less favorable to Belgrade” than what Rambouillet would have provided. If Belgrade had signed the Rambouillet accords, the KLA would have been disbanded and disarmed and Yugoslav border forces would have been allowed to enforce the FRY’s sovereignty. This would have been a far cry from the situation that resulted from yet another war lost by Milosevic, which pushed Kosova farther along the road to independence. Early in his defense case Milosevic called Ratko Markovic, head of the Serbian delegation at Rambouillet, to refute the prosecution’s evidence. Though the statement was hearsay and opinion and thus had no evidentiary value, the accused quoted the former secretary of state Henry Kissinger, who said that Rambouillet was not a negotiation but an ultimatum. Markovic claimed that the international organizers presented his delegation with a nonnegotiable document on arrival at the French palace. Since they did not meet face to face with the Kosovars, there was no negotiation, he stated, ignoring the reality that a facilitator will often shuttle between two contentious parties as a negotiating method. He characterized the proposed accord as a diktat that would have given Kosovars their own state, leaving Serbia with no power in Kosova. Markovic maintained that the only piece on the table was implementation, and the Serbs could not agree to give NATO unrestricted access to Serbia to police the agreement. His team, together with President Milutinovic of Serbia, he asserted, had the authority to sign any agreement; they T h e L e a d-up to Wa r   73

did not receive instructions from Milosevic as the prosecution’s witnesses claimed—and even Milosevic admitted. Milosevic asked if Serbia had made a mistake by refusing to sign the agreement. Markovic said no, because Serbia had not been occupied. He went on: “Unfortunately, a lot of people have lost their lives, but we have kept our honour.” It was a perfect opening for Nice’s cross-examination. “Was it the Kosovo Albanians that suffered for Serb dignity?,” he asked the witness, who replied that the Serbs suffered most because they had been persecuted for decades. When Nice asked whether more Kosova Albanians than Serbs lost their lives in the conflict, Markovic said that he had given his opinion and was entitled to it. Milosevic’s real problem with the Rambouillet accords was that they proposed a solution that would have Albanians, a threat to his power, remain in Kosova. He had already decided that only war, under cover of which his forces could drive out the majority of the Albanian population, would assure his control over the province and hence his hold on power.

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Wa r i n K o s o va Chapter 4

“Milosevic Lost Kosovo”

On an issue critical to finding Milosevic guilty of forcibly expelling half the Albanian population from Kosova, the prosecution produced Milosevic’s one-time loyalist, the former FRY president Zoran Lilic. His arrival at the ICTY had been repeatedly delayed by Belgrade’s refusal to waive prosecution against him for anything that he might say during testimony. As FRY president Lilic was a placeholder for Milosevic. None of the international players sought him out to resolve conflicts in the former Yugoslavia, turning instead to Milosevic, president of Serbia. When Milosevic’s term as Serbian leader expired, he orchestrated his election to the FRY presidency. Lilic, denied Milosevic’s support, lost his bid to become president of Serbia. He nevertheless remained loyal to Milosevic, serving in his cabinet as deputy minister. In court his loyalty to Milosevic led him to agree with nearly every proposition that Milosevic put to him on cross-examination—except concerning Kosova. Lilic favored a negotiated resolution over war. In May and November 1998 Milosevic sent Lilic to Kosova on fact-finding missions. From the SDB chief, Jovica Stanisic, he heard that some MUP reserves were illegally seizing Kosovar property. Stanisic also complained there was no unity of command between the police and the army, and the army was not providing proper logistical support to the police. Lilic reported the police crimes to Milosevic and the minister of interior Vlajko Stojiljkovic. The latter angrily responded, “All Albanians should be killed.” To which Lilic said he retorted, “One day we, our children and our children’s children will be ashamed of being Serbs.”

As noted above, in July 1998 the army chief of staff, General Momcilo Perisic, wrote a scathing letter to Milosevic, giving the army’s point of view. Perisic accused Milosevic of bypassing the army’s chain of command by creating a separate Guards Brigade that answered directly to him. He further charged Milosevic with promoting unqualified commanders and illegally ordering the army to supply the police with equipment. “You ordered me to supply the MUP. You are not authorized to command this and I am not authorized to respond,” Perisic chided Milosevic. Milosevic resisted declaring an emergency that would have subordinated the MUP to the army. His stated reason? Doing so might compromise the civil liberties of Kosova’s citizens. In fact his refusal to declare an emergency insulated Milosevic from responsibility for the actions of the MUP, as their ultimate commander was President Milutinovic of Serbia. Lilic said as much when he pointed out that under a state of emergency, MUP would be subordinated to the VJ. He also suggested that Milosevic resisted the declaration because it would alert the international community to the seriousness of the situation and affect negotiations. In any event Milosevic found the MUP easier to control and could bypass the recalcitrant VJ command by using the secretive Joint Command.1 Though Lilic authenticated the letter, Milosevic dismissed it as “imbecilic and a smoke-screen” for Perisic’s alleged espionage, made to justify himself to his “minders.”2 Smiling, Lilic responded, “I would have arrested [Perisic] myself if he had been spying. I can hardly agree that [the letter] is a smokescreen.” In 1998 Milosevic replaced Perisic and got rid of Stanisic, the long time head of his State Security Service, claiming that he was a CIA operative. According to Lilic, NATO bombing was not expected to last more than a few days. After two weeks Milosevic approved Lilic’s suggestion to seek out his diplomatic contacts.3 In Bonn he achieved success when he met with Chancellor Helmut Kohl of Germany and returned with a proposal for an end to air strikes. In exchange Milosevic had to accept a UN mission in Kosova to include representatives from a NATO state that was also a permanent member of the UN Security Council.4 Milosevic agreed at first but changed his mind the next day.5 In court the accused insisted that he had accepted the plan until he finally exasperated Lilic: “Please stop saying you had agreed to what I had suggested.” When Milosevic asserted that he had ended the conflict in the best way to protect Serb interests, it was too much for Lilic, who shot back, “There are fewer Serbs in Kosovo now than in the prisons of The Hague.” The prosecutor questioned Lilic about a letter that General Pavkovic had 76  Wa r i n K o s o va

sent to Milosevic on 25 May 1999, requesting that he take urgent measures to resubordinate MUP units in Kosova to the VJ. Pavkovic reported that certain MUP units were out of control, looting vast amounts of property and “committing serious crimes against the Shiptars [pejorative name for Kosovars],” including murder, rape, and robbery. Lilic had fallen out of favor by this time and could not testify directly about the letter. However, Nice asked him one important question, “Do you have any reason to doubt General Pavkovic?” Lilic responded, “Absolutely not.” Lilic’s testimony contradicted Milosevic’s assertion that he did not know what was happening in the field. In fact he had multiple sources of daily information, including the SDB and RDB, the army and civilian authorities, and special reports from people like Lilic. With Lilic’s testimony the wall that Milosevic had built to protect himself from the dirty business on the ground suffered a major blow. Milosevic’s Manipulation

Adnan Merovci, former aide to President Ibrahim Rugova of Kosova, described how, a week after NATO began air strikes, ten armed soldiers and police officers stormed Rugova’s house, where he was staying, and beat him for about an hour. They ordered the families to be held in one room for four hours, without food, water, or an opportunity to use the toilet. For the next month armed men surrounded the house, occasionally shooting through the windows. Two weeks into the de facto house arrest, authorities demanded that Rugova make a declaration on television about his safety. Merovci agreed to do it in his stead. What turned out to be a TV interview was filmed in Rugova’s home in the presence of armed police and soldiers. At the end of cross-examination Milosevic began reading from a transcript of the interview, claiming that Merovci had said, “I categorically say bombing was the reason the people left [Kosova].” Merovci vehemently denied that people had fled because of NATO bombing, but admitted that his statements might be interpreted to mean that bombing played a role. He pointed out that when he gave the interview he was surrounded by armed guards. When Milosevic could not produce the tape, the court asked the witness to return when it became available. Three months later Merovci returned and the tape was shown. A central issue was whether the circumstances surrounding the interview amounted to duress—whether Merovci felt unable to speak freely because of threats, violence, or coercion. From Merovci’s prior testimony there seemed little quesWa r i n K o s o va   77

tion that he gave the interview under duress. The tape showed a haggardlooking Merovci, whose appearance was consistent with having been beaten. On the tape, as interpreted from Albanian into English, Merovci said: “The flight of the population is very complex. Bombing has caused people to move. But, as a counter argument, one could ask why Serbs from Northern Serbia [where there was also bombing] did not flee? It is complex. Time will tell. Analysts will look at it and say to what extent bombing influenced the population.” Under Milosevic’s cross-examination Merovci insisted, as he had earlier, that Kosovars did not flee because of NATO bombing: “In the television interview I was standing in front of guns.” Milosevic contemptuously responded, “Oh, please, Mr. Merovci. These are such unbelievable things!” The accused hammered the witness repeatedly about the incredibility of his claim that he gave the interview under duress. While Merovci never wavered, the judges began to have doubts. Judge Robinson asked, “In the interview you declared you weren’t forced and now you say you were.” The judge was referring to the following videotaped statement: “I agreed to do the interview. No pressure was put on me. I am one of Dr. Rugova’s staff and not subject to political obligations. . . . I can say now in public that I do feel under a certain kind of pressure and I don’t need to say anymore.” It seems obvious that Merovci was trying to walk a fine line: “To get by the moment, I had to find a diplomatic answer. The word ‘complexity’ contains a lot of things. I avoided saying yes or no and gave a rather conditional and diplomatic reply.” It is even more obvious that the circumstances in which the interview was conducted were highly coercive. Yet the judges seemed, at least for a time, to miss both the subtleties of the interview and the context in which it was given. The passage of three months since Merovci’s initial testimony may have had an effect, though this was worrisome in a trial projected to last years. Milosevic’s incredulous tone could have played a part, even with judges alert to his dramatics. Moreover, Milosevic and the prosecutors were reading from different transcripts of the interview. While subtle, the variance was significant. Milosevic read: “You could make a counter argument that Serbs were fleeing from the North, but Albanians were not fleeing before bombing. I think bombing influenced the people to move.” The prosecutor read the same passage from its transcript: “As a counter argument, you could ask why the Serbs from Northern Serbia didn’t flee.” The interpreters translated the audio version in conformity with the prosecution’s transcript. There is no telling 78  Wa r i n K o s o va

whether the accused’s mistranslation was intentional or a mistake. Both possibilities were cause for concern in a trial where testimony was translated into three languages and the accused refused to give the court and its process any validity. Throughout the proceedings Milosevic intentionally tried to confuse and intimidate witnesses, for which the court repeatedly reprimanded him. The length of the trial, its complexity, and Milosevic’s undermining tactics required the judges to maintain a high level of alertness and discernment throughout.

Dr. Ibrahim Rugova, president of Kosova, arrived in court wearing his signature red silk scarf. Head of the LDK (Democratic League of Kosova) and of the decade-long Kosovar nonviolent resistance movement, he testified about the history of troubles within the province and their exacerbation following Milosevic’s assumption of power. For more than a decade Rugova had been the symbol of resistance and a revered leader to Kosova Albanians.6 A mildmannered writer and intellectual who had studied at the Sorbonne, he was twice elected president of Kosova in the parallel state. His leadership began to wane when the antiviolence campaign yielded no results, particularly after negotiators at Dayton ignored the plight of Kosova Albanians. Rugova seemed to have lost all credibility when he appeared on television smiling and chatting with Milosevic during the war, then accepted Milosevic’s offer to fly him and his family to Italy for the duration. The public learned only later that he had been coerced to do so. In October 2000 Rugova’s victory in Kosova’s first postwar election showed that he had redeemed himself with a war-weary nation. In court, no longer subject to coercion from Milosevic’s henchmen, Rugova stood up well to Milosevic’s blistering cross-examination. As Merovci had testified, seven days after NATO bombs began falling Rugova was placed under de facto house arrest. On 1 April and 4 May he was taken to Belgrade under police guard to meet with Milosevic, meetings staged for the press. He was also “escorted” to an additional meeting with President Milan Milutinovic of Serbia.7 In his first meeting with Milosevic and the following meeting with Milutinovic, Rugova was asked to sign a prepared “agreement” to find a political solution to the Kosova “situation.” He testified that he did so under coercion, speculating about the agreement’s purpose: “They thought they could compromise me politically and discredit me in the eyes of the Kosovar public and foment conflict among Albanians on the political stage.” When asked if they Wa r i n K o s o va   79

were successful, he quietly answered, “No.” It was true in the long run, but Milosevic’s efforts succeeded during the war and for some time after, as the Kosovars felt betrayed and lost faith in him. During the meetings with Milosevic, Rugova was nonconfrontational. Pressed by the prosecutor to state whether he had mentioned any of the crimes committed against the people, Rugova answered, “I made some mention, but he certainly knew. In fact, I didn’t go into details.” He was deferential when he did broach the ethnic cleansing: “I expressed my concern over my associates first, and told him that people are being driven out of Kosova by military and police forces and other groups. I asked him to find out what was the matter, to do something, and he was listening to me.” Milosevic blamed the international community. This description does not present a picture of a leader concerned about his people, who were being beaten, murdered, and driven out of their homeland in a massive campaign of ethnic cleansing. Nor of one who was well aware that Milosevic knew about what was happening in Kosova and in fact was the architect. During his second and final meeting with Milosevic, Rugova said, the two only discussed his desire to leave the country, arranged the following day. In the meeting with Milutinovic, however, Rugova testified: “I told him . . . that Kosova was being emptied of people, that there is oppression, violence committed against people.” Milutinovic’s response was the same as that of Milosevic earlier: whatever was happening was being caused by the international community. Given that Rugova and his family were prisoners of the FRY and that other human rights activists and leaders of the Kosovar community had been taken away by Serbian forces at the outset of the war and later turned up dead, his caution was justified. In fact there had been threats to kill his family. Regardless, it took a long time for Rugova to recover from his poor showing, both personally and politically. Rugova testified to several facts supporting the prosecution’s charge that the deportation had been a well-planned and coordinated operation: (1) military and police reinforcements were sent into Kosova during the time-out period after the Rambouillet conference; (2) activists, such as the human rights lawyer Bajram Kelmendi and his sons, were hunted down and killed on the first night of NATO bombing, and the LDK vice-president and chief negotiator Fehmi Agani was taken off a train while trying to flee and murdered; (3) the LDK headquarters and the USAID office in Pristina were burned that night; (4) all phone lines into Kosova were immediately cut when the bombing began; (5) the army, police, special forces, and local Serbs acted 80  Wa r i n K o s o va

in a coordinated manner. Given this, how could Rugova have believed that Milosevic was unaware of crimes being perpetrated by his forces in Kosova? Obviously he did not. Fear led him to participate in Milosevic’s charade. Rugova’s testimony and cross-examination necessarily verged into political matters, which had limited relevance to the case and had to be approached with caution. Nevertheless the court allowed Milosevic some leeway in questioning about post-indictment political matters. The answers may not all have been to his liking. Milosevic: Do you believe that Serbs are going to give up on Kosovo and Metohija altogether, Mr. Rugova? Rugova: I believe they will, and they should give up Kosova. . . . Kosova belongs to the Kosovars. That is, the Albanian majority, the Serbs of Kosova, the Bosnians of Kosova, the Turks and others who live there. . . . So I don’t know what Serbs are you talking about giving up Kosova. But if you mean Belgrade, it should give it up because Kosova belongs to the Kosovars. And the sooner you do that, the better we’ll be. If Rugova’s messages to Milosevic during his captivity were ambiguous, his message to him before the international tribunal was not. While Milosevic led his nation to war, Rugova intended to lead his to peace—and open a door for reconciliation.8 Fair Trial May Require Counsel

As the trial neared its half-year mark, Milosevic’s lengthy and recurring absences due to ill health led the trial chamber to grant the prosecution five additional weeks for its case in chief. As predicted in an early medical report, the accused’s physical condition remained a factor throughout the trial. The doctor concluded that Milosevic was under a “severe cardio-vascular risk which demands careful future monitoring.” He recommended that Milosevic’s workload be reduced and that he receive treatment from a cardiologist. The court’s new deadline did not allow for any reduction in workload or courtroom hours. The court had already cut the number of witnesses for the Bosnia and Croatia segments to 175 from an estimated 277 whom the prosecution had proposed to call. Because the tribunal was responsible for the care of the accused—and he was taking little responsibility himself (stating that he only agreed to the medical examination and withdrawal from court during illness because he was a “civilized” man)—the tribunal had to make decisions about the conduct of Milosevic’s defense. Judge Robinson Wa r i n K o s o va   81

suggested one possibility: “Your health is a matter of very great concern to me as a member of this Trial Chamber. The doctors have recommended that you be given rest. It is quite clear to me that the whole business of preparing for cross-examination and cross-examination itself is extremely onerous. It has occurred to me that one way you can have rest is if you appoint counsel. You have expressed your views [against doing this], but it may be we can establish a system where you can share cross-examination [with appointed counsel].” Addressing Judge Robinson as “an honorable man” with good intentions, Milosevic rejected his suggestion of even partial assistance from counsel. He repeated that he did not recognize the tribunal and considered it part of a “New World Order” to enslave countries like Judge Robinson’s native Jamaica. It seemed inevitable, the judge responded, that the court would have to consider measures to take account of Milosevic’s health. Milosevic was no more inclined to accept counsel to represent him in July than he had been in February, though it was clear by then that he was neither capable of nor interested in mounting an effective defense on his own—even aside from physical limitations. He most often focused crossexamination on irrelevant issues or used it to harass witnesses, playing to his audience back home. As Nice said, “The accused may require assistance to save himself.” Nice suggested that the court could identify issues on which the accused should cross-examine witnesses. There was no reason to believe that Milosevic would follow the court’s advice, since his purpose was to advance his political agenda. The court ordered an evaluation by a cardiovascular specialist. The examination’s conclusions as well as Milosevic’s inadequate defense to this point should have been sufficient for the court to require Milosevic to have counsel. They were not. It would take another year and many more days when the court stood idle because of the accused’s illness before it would assert its prerogative to appoint counsel. And Milosevic would defy it. The Invisible Crime

The first two witnesses after Milosevic returned to court from three weeks’ illness testified in closed session. Ordinary protective measures—such as anonymity and voice and face distortion—were not enough. The courtroom was closed off, the gallery was cleared, and television monitors showed the ICTY logo. The witnesses were victims of rape. Much later the court ordered a redacted version of the transcript to be made public. Because the testimony was buried in thousands of pages of transcript, however, the media did not 82  Wa r i n K o s o va

report it, contributing to the invisibility of rape as a war crime. Therein lies a dilemma. In the rural Albanian culture as in many patriarchal cultures, rape victims are shamed and shunned. Speaking about the crime places them in jeopardy again, this time of losing family, friends, community, and the possibility of leading a normal life in their society. Silence about the crime, however, reinforces its shamefulness, as well as its implausibility, increasing the likelihood that victims will not be believed. Five female rape victims testified in the Kosova phase of the case, while another witness testified to the rape and murder of eight women, including her sister. They told their stories with difficulty, struggling over the trauma and shame that accompanied the retelling. K-20, a twenty-three-year-old Kosovar, begged her captors to kill her. “That policeman who was there, I told him—when the soldier approached me, I told him, ‘Please kill me, because God knows what they are going to do to me.’ And he said, ‘No, I will not kill you.’ ” Instead he and two other policemen raped her. At Prosecutor Cristina Romano’s urging, K-20 told the court about the rape and how it had affected her. Her spare language belied the deep emotion behind it and the young woman’s struggle to stay present and not get lost in the original trauma. Q. “Are you still suffering, physically or mentally, the consequences of what happened to you?” A. “Yes, very much so.” Q. “How hard is it in your society to face what happened to you?” A. “Well, yes.” Milosevic approached cross-examination in an aggressive style, one that was common among prosecutors before rape victim protection laws were passed to minimize gender-biased attacks that kept victims from coming forward: “I’m sorry to hear what happened to you, if it happened to you, but my question is: What proof do you have that this did happen to you?” When Milosevic insisted that K-20 needed to provide evidence to corroborate her testimony, Judge May interrupted to advise him that this was not the law of the tribunal, which followed the modern rule in not requiring corrobo­ ration.9 K-31 explained why Kosovar rape victims were reluctant to tell anyone what happened to them. “It’s terrible to speak about such things in Kosova. . . . Albanian women are not looked upon well if they—they have to suffer in silence. . . . I was frightened that if people knew that I had been raped, that no one would ever marry me or want to marry me, and that’s why Wa r i n K o s o va   83

Tribunal Issues Watershed Decision on Rape The icty appeals chamber handed down a watershed decision on 12 June 2002 in the case of Prosecutor v. Kunarac, Kovac and Vukovic, holding that the crime of rape does not require the use of force. Coercive circumstances, such as holding someone against her will, are sufficient. In addition, the chamber ruled that rape is a war crime where the existence of a conflict plays a substantial part in the decision to commit the crime, the ability to execute it, or the reasons for committing it. It is not necessary to prove that the existence of the conflict is the only possible cause of the crime. As Kevin Kish analyzed the decision for the Coalition for International Justice, “In this case the facts that the convicted men were all combatants, their victims were all from the ‘other side,’ and their acts furthered the ultimate purpose of the general campaign, all could be used by the court to find that their acts were sufficiently related to the conflict.” “Tribunal Sets New Standard for Rape: Conflict Played ‘Substantial Part’ in Foca Rapes,” 12 June 2002, archived at www.iwpr.net.

I didn’t mention it. The first time they asked, there were local interpreters there, but I told them about it, and they told me not to worry about it. But there were children around, and people were worried about me, and I didn’t know exactly what to do.” Milosevic’s brutal questioning of K-31, during which he repeatedly accused her of lying, caused the prosecutor to rise. “We know imperfectly, others know better, the damage that is done and is sometimes intended to be done to witnesses in this position by this form of cross-examination.” He urged the court to consider whether it was appropriate for the accused to be so aggressive with victims of rape. Milosevic commented that he would agree with Nice if he “would even faintly believe that the witness were telling the truth.” The judges consulted and ruled that Milosevic was entitled to cross-examine as he had been doing, “provided he doesn’t overstep the mark, provided he didn’t oppress the witness.” The court would determine when he crossed the invisible mark, which they set well beyond what was necessary for a vigorous cross-examination. Their too liberal ruling undermined the reasons why rape shield laws were introduced: to protect victims from the unwarranted prejudicial assumption that they are lying and to prevent trauma from an accusatory cross-examination that some women experience as worse than the rape. Fortunately K-31 was pugnacious. She asserted, “Other people may not believe it, but I was a virgin. I’d never had relations with others. And now I’m terribly frightened of people with beards. You can believe me or not, whether

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you want to or not, but that’s what I went through. And if it wasn’t the truth that I was telling you, I wouldn’t have bothered to come here to tell you anything but the truth.” After witnessing the murder of her father, brother, and sister, K-31 was taken with another brother to a hospital in Pristina where the brother was treated for gunshot wounds. She was put in a basement room with more than a dozen young Kosovar women. Soon she was singled out and taken to another room, where several soldiers “viciously raped and assaulted” her before she lost consciousness. While Milosevic harshly cross-examined K-31, he was solicitous of a particularly fragile victim, K-14. Judge May noted her distress and agreed to the prosecution’s request that a member of the tribunal’s Victim-Witness Unit be allowed to sit near her in court. While she answered Prosecutor Dirk Ryneveld’s litany of questions, she grew increasingly agitated as he approached the subject of her rape. Judge May stopped the proceedings and directed that the prosecution determine her ability to proceed, cautioning that “it’s a question of really the witness’s interests above all.” When the court reconvened after a fifteen-minute break, Ryneveld informed the judges that the witness was feeling better and wanted to tell the court what happened. To ease her burden he proposed to let her recount the events in her own words, with minimal questioning. K-14 told of two policemen coming to her home: [T]hey asked me for a glass of water. I gave it to them and my hand was shaking. . . . And I was frightened. . . . And they took me, me and my sister. And they took me to a car. And my sister fainted and couldn’t get into the car, and me, they put me into the car. And I said to them, “I don’t want to come,” and they beat me with a rifle butt. . . . And when we got out of the car there, . . . they took me upstairs to a room with a bed. . . . They threw me onto the bed. . . . And I was very afraid, and I shouted. And they took off my clothes completely. And he took off his clothes completely, [redacted]. And he began to rape me. And I started to lose blood, and I had a terrible stomach ache and great pain in the vagina. They threw me from the bed onto the floor. And my back hurt and my stomach hurt. And I— I had terrible backache. And they—they kept me about two hours and then they returned me home. K-14 and her family left the next morning for Macedonia. After a few questions about the KLA, Milosevic desisted from cross-

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examination when K-14 responded, “I don’t want to be asked any more questions, because I can’t hold out and because of my heart, because those people who raped me have ruined my life.” In cases where Milosevic did not question that the rapes occurred, he asserted they were perpetrated by criminals, not soldiers or police. Yet even where that may have been what happened, the victims’ testimonies showed that the army at least facilitated the rapes by turning the women over to those who raped them. The testimony did not reveal a widespread pattern of rape in Kosova that would show a policy decision behind it, as occurred in Bosnia. That does not mean that the rapes did not happen, nor that they were unrelated to the war. As pointed out above, in the traditional Albanian community rape is shameful for the victim and has lifelong consequences, including potential ostracism from family and community. Combined with other crimes such as beatings, killings, and property destruction, rape in Kosova constituted widespread terror, designed to force nearly a million Kosovars to leave their homes for Macedonia, Albania, and countries farther afield. Milosevic failed to secure any acknowledgment from the victims that they left their homes because of NATO bombing or under KLA orders. During the witnesses’ testimony it was publicly disclosed in Serbia that two Kosovar victims of rape were testifying against Milosevic. The prosecutor notified the court that television station RTS in Belgrade had made the disclosure and revealed the witnesses’ pseudonyms, information known only to the prosecution, the court, the victim witness advocate, and Milosevic and his two legal assistants. Milosevic quickly denied revealing the identities of protected witnesses but admitted that he had asked his associates to look for evidence of rape by soldiers and police in preparation for his cross-examination. Still, he said, he was certain that they would not have disclosed the information. Nice’s concern was the potential effect of disclosure on future rape victim witnesses, whose fear was already so great they did not even want their pseudonyms or the subject of their testimony to be made public. And what of the women who testified? How distressing was the disclosure likely to be to their already traumatized minds? Dubrava Prison: Sitting Ducks

Serbian forces used the Dubrava prison as a military installation until December 1998, when they began transferring prisoners there—mostly Kosova Albanians accused of political crimes.10 In their efforts to fill up the prison they brought people who were not even charged with a crime. One 86  Wa r i n K o s o va

prosecution witness and survivor, Gani Baqaj, called the prisoners hostages. They were more like sacrificial lambs. Victim witnesses testified that an anti-aircraft gun was kept at the prison gate and that Serbian forces fired it regularly and provocatively at NATO planes. Believing that the prison was a military target, NATO bombed it on 19 May and again, for much longer, on 21 May. Twenty-three prisoners were killed. The Serbian MUP took advantage of the situation and sent guards to replace the police. The day after the second bombing, 22 May, police ordered the prisoners into long lines on the sports field, Musa Krasniqi, a survivor, testified. A policeman announced that the prisoners would be taken to a prison in Nis, Serbia for their safety. Eight hundred prisoners obeyed, while well over a hundred hid inside the buildings. Not more than five seconds later all hell broke loose, as the police lobbed grenades and fired bazookas, hand rockets, semiautomatic rifles, and machine guns at the exposed prisoners. The attack lasted half an hour. Baqaj described the attackers as militiamen and guards wearing black masks with eyeholes cut out. When the attack ended, Krasniqi testified, “We helped wounded prisoners, and round about 1:00 to 2:00, we went to the scene of what had happened and we lined up the dead bodies and we took away several others who were lying wounded.” That night they hid in sewers and basements. The next morning police tossed grenades into hiding places, killing more prisoners. Ninety-seven prisoners died in the massacre; many more were wounded. Serbian authorities called in the media to view the bodies and the damage. Journalists reported that they appeared to be civilian casualties from NATO bombing. Jacky Rowland, a reporter for the BBC who was at the scene and testified before the tribunal, was not so sure. Some of the bodies she saw did not have wounds consistent with a bombing. Milosevic’s challenge to her observation produced a response that enlivened the gallery: “If for example I look at you now, Mr. Milosevic, I can see that you have both of your arms, I can see the features on your face, I can see that your body is intact. If, however, you were hit by a bomb, heaven forbid, I think that I would be able to tell by looking at your body whether that was, in fact, the manner of your death.’’ Milosevic, amused, enjoyed sparring with her. Milosevic claimed that NATO bombed the prison on three (not two) days, killing more than a hundred prisoners. In his defense case he called Radovan Paponjak, head of traffic police in the Pec SUP, and General Obrad Stevanovic, Serbia’s assistant minister of the interior. Stevanovic’s testimony brought a major surprise, which demolished Milosevic’s defense. Wa r i n K o s o va   87

Radovan Paponjak, head of the Pec police traffic sector, produced a report of the incident written three years later.11 He told the court that it was based on investigative documents, videotape of the scene, reports of investigative judges, and statements of eyewitnesses. In addition to claiming that nearly a hundred prisoners were killed by NATO bombs and that the bombing continued for three days, not two, the report said that prisoners attempted to escape when bombing breached an outer wall. It went on to state that measures were taken to stop the escapees, but did not identify those measures. Nor did Paponjak know, though he signed the statement. He offered that it would have been normal for guards to have used firearms. Under Nice’s cross-examination Paponjak admitted having no evidence that the prisoners were shot running away, died from bombing, or were executed. He simply had no knowledge of the causes of death. Nice also elicited Paponjak’s admission that he had no evidence of a third day of bombing (24 May), as Milosevic claimed. When Milosevic showed a video of bodies lying in the sports field, Judge Kwon pointed out the findings of a Spanish forensic report that thirty bodies had gunshot wounds. Paponjak admitted that Serbian investigators did not conduct any postmortems. The conditions would not permit it, he said later in reexamination. He maintained that Dr. Stijovic, a forensic physician, carried out an external examination of the bodies, but he did not have Stijovic’s records. Nor did he see any signs of such examinations at the place of burial, where they were supposedly conducted. When Nice asked what signs the bodies showed of bombing or having been shot, Paponjak answered, “I did not establish the cause of death, so I cannot speak about that. At any rate, it smelled unpleasantly. The entire site had a most unpleasant odour, and I did not stay there very long. This kind of work is carried out by people who have to do it.” But Paponjak stubbornly insisted that all prisoners who died were killed by bombs. It was “incontestable.” That was too much for Nice: “I’m sorry, incontestable. Thirty people with gunshots going through their heads, going straight through their bodies. That’s caused by bombing, is it? And if so, would you like to explain what kind of bomb it is that lets off ordinary bullets? You see, we’ve got pathologist evidence on this, Mr. Paponjak. You may not have known that.” Cross-examining General Stevanovic, Nice produced a report by the prison warden, Aleksandar Rakocevic, found among the defense exhibits, that destroyed Milosevic’s defense. The warden wrote that a special MUP unit took over the prison on 22 May, ordering prison guards to withdraw. He 88  Wa r i n K o s o va

continued, “We do not know what they were doing there, but we could hear detonations.” He sent the report to the Serbian minister of justice, minister of the interior, president, and the head of the SDB, with a “read this” notation. Rakocevic reported NATO attacks on 19 and 21 May, but none on 22 May. He wrote, “From 5.00 in the morning [on 22 May], pursuant to an order of the Ministry of the Interior, the prisoners of Dubrava were at the mercy of MUP special units staff.” Milosevic’s defense team apparently overlooked the warden’s report when they gave exhibits to the prosecution, as required by ICTY rule. Stevanovic, who did not visit the prison but based his knowledge on local police reports, testified that the warden’s report was wrong. He insisted that special police units did not take over Dubrava. It must have been the local police, he suggested. And Paponjak insisted that the local police had not done so. The contemporaneous report by a Serbian official spoke louder than Milosevic’s witnesses. It exposed them as liars, just as it supported the testimony of the Dubrava survivors. Black Mountain Warriors

In the summer of 2002 a young man made his way to The Hague to testify against his former commander in chief. He came from the Black Mountain— Crna Gora in the local language, Montenegro to much of the rest of the world. The young soldier, designated K-32 for his protection, was conscripted into the VJ in March 1998. He soon found himself in Kosova, part of a unit engaged in cleansing territory of Albanians. He told of going door-to-door, evicting Kosovars and looting their possessions, while officers confiscated vehicles. They worked with the police, who were burning villages. He described coming upon two pals standing over the bodies of two men. After obtaining information they killed them, the soldiers revealed. K-32 saw that their ears had been cut off. It was 1998, before NATO entered the scene and could be blamed for the expulsions and destruction. K-32 went on home leave and did not return. After being arrested and spending twenty days in jail, his father persuaded him to rejoin his unit. By March 1999 they were surrounding and attacking villages with the police. He told of the regional commander, Colonel Bozidar Delic, ordering them to cleanse a village and not leave anyone alive. He saw soldiers shoot a man trying to surrender. At Trnje, Delic ordered the troops to cleanse it of civilians. “This was at 8:00 in the morning when the village was attacked, and they started shooting, killing civilians, old men, women, children. I didn’t see any young men there. . . . I personally saw them killing people with my very Wa r i n K o s o va   89

own eyes.” Later he was ordered to take a truck from the Higijena Cleaning Company, collect the bodies, and bury them. At Mece, Delic ordered a tank to fire on a house, though no fire came from within it. After he ordered the tank to fire a second round, a woman and children ran from the house into the woods. Delic then gave the order to cleanse the village. Milosevic turned to an oft-repeated tactic in cross-examining the young Montenegrin: rapid-fire questions alternating between two incidents, designed to conflate and confuse. Judge May warned him: “No. You’re not going to confuse the witness in this way. No. There’s no need to answer that.” The judge also stopped Milosevic from misrepresenting evidence by asking questions that assumed the witness was testifying against Delic out of revenge and shame, even after K-32 said he harbored no ill will toward his former commander. As K-32 concluded that testifying about the ethnic cleansing, looting, maiming, and murders he had seen helped clear his conscience, another young Montenegrin watched. If testifying against Milosevic, the man who sent them both to war, eased K-32’s conscience, might it do the same for him? The young man approached the prosecution, offering to tell his story. Where K-32 participated in looting and forcible deportation, but never knowingly executed civilians, K-41 had blood on his hands. His conscience did not allow him to sleep easily knowing that he was only following orders.12 K-41 testified that he was never told about the Geneva Conventions and the individual soldier’s obligation to disobey orders to harm civilians, prisoners of war, and unarmed combatants, as Milosevic continually insisted. He told the court that Captain Pavle Gavrilovic ordered his company and two others to cleanse a village by burning the houses and killing anyone they found. K-41, then nineteen years old, served in the same logistics battalion as K-32. The regional commander was Colonel Bozidar Delic. In Trnje K-41 and other soldiers burned from ten to fifteen houses before they discovered any people. Fifteen women, children, and elderly men were forced out of their house at gunpoint and made to sit on the ground. The sergeant ordered all but four or five of his company to leave. He ordered those remaining, including K-41, to shoot the civilians. The soldiers obeyed. K-41 described what happened: “The people shot at began falling down one over the other. What I remember most vividly is how—I remember this very vividly—there was a baby shot with three bullets, screaming unbelievably loud.” The baby’s scream haunted the conscript for three and a half years and ultimately brought him to confront Milosevic. “I came forward to give my evidence because I wanted in this way to express everything that 90  Wa r i n K o s o va

is troubling me, that has been troubling me for the past three years since I completed my service. Never a night goes by without my dreaming of that child hit by the bullets and crying. I thought if I came forward and told the truth that I will feel easier in my soul. It is the only reason I am here.” Milosevic asserted that not a single officer ordered K-41 to kill civilians. K-41 responded, “That is not correct. I heard this [order to not leave anyone alive] and also ten soldiers from my company can confirm it and in no way can you deny that. I was there, I heard it and . . . you, as Supreme Commander, could have come down there and seen what it was like for us. You were issuing shameful orders to be carried out.” Milosevic devoted little time during his defense case to counter the testimony of K-32 and K-41.13 When Bozidar Delic testified the accused asked about the two soldiers. Delic denounced them as criminals who testified to protect themselves from a crime they had committed. He was no more specific. Milosevic gave the general the opportunity to answer K-32’s accusation that he ordered a tank to fire on a dwelling. Delic did not deny it, but said that fire was coming from the house. K-41’s testimony confirmed the conclusions of the military expert Brigadier General Peter De la Billiere: “I felt the army was disciplined. Therefore, one must discount that what they did was the acts of independently motivated rabble.” Milosevic too hastened to make it clear that orders came from the top. He addressed De la Billiere: “I hope you are not claiming that any senior commander, from a brigade commander up to me as supreme commander, used any justification and said what was done was done by lower down commanders going against the law or acting contrary to orders. This would have been shameful if superior commanders would justify themselves.” Milosevic’s need to appeal to his Serbian audience trumped any desire he might have had to defend himself. Of course Milosevic did not agree that his forces committed crimes. But he was on record as agreeing that he directed military forces in Kosova. Experts Aid Prosecution

As one way of establishing that ethnic cleansing had been carried out throughout Kosova, the prosecution introduced an innovative expert study that found killings and refugee flow to have occurred in a distinctive pattern, indicating that they had a common cause. The study, conducted by Dr. Patrick Ball under the auspices of the American Association for the Advancement of Science and the American Bar Association’s Central and East European Law Initiative, also concluded that its results were consistent with Wa r i n K o s o va   91

“a systematic campaign by Yugoslav forces” to drive “Kosovar Albanians from their homes.” Ball testified that the study could not prove what caused the refugee flow or the killings. Statistical studies of this type cannot establish what is true, only whether data are consistent or inconsistent with various hypotheses. The research allows rejection of a hypothesis, but not proof of one. It did find that neither NATO bombing nor KLA activity was correlated with killings, and that NATO bombing did not precipitate the massive flow of refugees out of Kosova. A sharp decline in killings and population displacement during a Serb ceasefire for Orthodox Easter gave added support to the thesis that Yugoslav forces were carrying out a systematic campaign of ethnic cleansing. While elements of the study’s research methodology are well accepted in the scientific community, according to Ball their application to human rights violations in a conflict was unprecedented. That this type of evidence had not yet been accepted in a court contributed to the trial chamber’s uneasiness with the report. The judges asked that Ball’s data be made available for independent expert examination. They were also concerned because the evidence came close to usurping their role. Milosevic attempted to discredit Ball by reading from a speech he had given in which he urged the audience to applaud Slobodan Milosevic’s extradition to The Hague. Ball replied that he was merely supporting the concept of international justice. Milosevic also suggested that the data underlying Ball’s research were fabricated, particularly 690 forms recovered from an Albanian border crossing. According to Ball, fabrication was likely only as “the remotest science fiction.” Finally, the accused questioned the report as reductionism, asserting that the complexities of war cannot be reduced to three hypotheses. He suggested that war itself was the cause of population flight; when the war stopped, the refugees returned home.

One of the methods used to persecute the Kosovar population was to wreak systematic and wanton destruction and damage to their religious sites and cultural monuments, according to the indictment. Such destruction committed on political, racial, or religious grounds is a crime against humanity. Through the testimony of Andraś Riedlmayer, an international expert on the Balkan cultural heritage of the Ottoman era, the prosecution sought to prove Milosevic guilty of it.

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Riedlmayer, associated with Harvard University, provided a report of his investigations of war damage to cultural and religious sites in Kosova. Based on a two-year study that he undertook with the architect and Balkan specialist Andrew Herscher between July 1999 and the summer of 2001, sponsored by Harvard’s Center for Middle Eastern Studies, the report concluded that three out of four urban centers dating to the Ottoman years were devastated as a result of intentionally set fires. Serbian police, army troops, paramilitaries, and in some cases Serb civilians perpetrated these attacks, according to eyewitnesses. In addition, traditional Albanian residential buildings, called kullas, were targeted for destruction. Over one-third of all mosques in Kosova were damaged or destroyed. While Milosevic asserted that NATO bombardment was responsible for damage to Kosova Albanian heritage sites as well as for damage and destruction to Serbian Orthodox religious and historical monuments, Riedlmayer’s study absolved NATO of responsibility for all but damage to the roof of one village mosque and to a disused Catholic church, damaged by an air blast during a missile strike on a nearby army base. In several cases where Serb authorities alleged complete destruction of monuments by NATO (such as the Sinan Pasha Mosque and two Ottoman bridges), investigators found the monuments completely intact. Riedlmayer described how investigators reached their conclusions that damage was not caused by air strikes. In the case of the Museum of the Prizren League, Riedlmayer noted several facts inconsistent with damage from NATO aerial bombardment: (1) no nearby building was damaged; (2) a hit by an explosive device would have left nothing of the mud, brick, and wood construction; (3) the museum was a monument to the Albanian national movement; (4) eyewitnesses said that Serbian police destroyed the building with handheld incendiary devices; and (5) life-sized statues of the league’s founders, in back of the museum, were found in the river after the war. All of this supported the conclusion that Serbian forces on the ground had maliciously targeted the museum. Milosevic claimed that NATO targeted the memorial complex at Gazimestan, commemorating the Battle of Kosovo Polje. That accusation led Riedlmayer to visit the site. Only the cast-iron ornamentation on spotlights erected in 1989 was visibly damaged. Though Riedlmayer was denied entry, the policeman guarding the site said that the interior staircase was damaged by an explosive device after the war. Throughout the province Riedlmayer and his co-investigators found dam-

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age and destruction of Kosova Albanian cultural heritage sites from ground attack during the war and what appeared to be Kosovar attacks against Serbian cultural heritage sites after the war. He also learned that Serbian forces used two Catholic churches as bases of operation, which was prohibited by international law. Riedlmayer later testified to similar destruction of Islamic religious and cultural sites during the Bosnian war.

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M a s s a c r e a n d C o v e r-u p Chapter 5

Murder in a Pizzeria

Shyrete Berisha was one of very few witnesses whom Milosevic did not question. A thirty-eight-year-old mother of four, she came to tell the court how her children and husband had been murdered in front of her eyes. Part of the extended Berisha family lived in Suva Reka, in a house half of which they rented to the KVM. The day after the monitors evacuated, police and military entered the village with tanks, Pinzgauers, and other military vehicles.1 On 25 March 1999, the day after the war officially started, police knocked on Mrs. Berisha’s door. They took her husband Nexhet next door, beat him severely, and stole KVM equipment and 50,000 Deutschmarks from the families. The Berishas moved to a relative’s house, but there was nowhere safe in Suva Reka. On 26 March Serbian forces parked two tanks across from the house, guns pointed in its direction. Around midday, thirty police officers approached. One, whom the witness knew as Zoran Petrovic, called for a man named Bujar to come out. When he did, he was shot dead. Terrified, the remaining occupants tried to escape, but there was nowhere to go. Police stopped the men at once. A policeman named Miskovic told Nexhet to put his hands in the air. Holding the hands of two of her children, Mrs. Berisha and the children watched as police shot her husband in the back. The survivors, numbering about forty or fifty and consisting mostly of women and children, were herded into a café, where they found places to sit on chairs and blankets. The police had no intention of letting them get comfortable. Mrs. Berisha’s eldest daughter arrived with her brothers. In a statement to prosecution investigators, Mrs. Berisha described what happened: “I saw that [eleven-

year-old] Altin was bleeding and I asked him what happened. He told me that they shot him in the hand and leg but not to worry. The Serbians were shooting at my children while they were running away. His heart was beating so fast and his face was all pale.” As soon as everyone was gathered in the cafe, the thirty or more police officers and paramilitaries opened fire with automatic weapons. They fired for twenty or thirty minutes, an eternity. Mrs. Berisha could not see what was happening until the firing stopped. Then she looked up. “I saw Vjollca [her sister-in-law] was still alive and [she] said, ‘Oh, Shyhrete, look what they’re doing to us.’ I said, ‘Look at, look at Dafina, see where she is.’ And I looked around and I saw Dafina, Vjollca’s daughter. She was suffering. And the daughter of Musli Berisha said, ‘Oh, look what they’ve done to me. Look at my feet, look at my legs,’ she screamed. And then the brother-in-law of Hajdini said, ‘Look at my poor Granit. Look what they’ve done to him.’ ” Mrs. Berisha spoke of her children. “Majlinda said, ‘Mummy, mummy, look at how they’ve killed Herolinda.’ And when I looked around, I saw Herolinda over there and saw . . . that she was lying on the ground with five or six bullet holes in her flesh. She had been such a beautiful girl.” But soon Majlinda died too. She was sixteen. Herolinda was fourteen. Mrs. Berisha continued her litany of the dead: “And Sebahate on the other side said, ‘Look. They’ve killed . . . her. They’ve killed Jori [phoen] and Sherine.’ Sherine was a brother-in-law, and the other one was his brother.” Mrs. Berisha told how police threw grenades into the café to kill those still living. “I cannot remember any explosion but I turned to look at my children. I saw my son Redon was sitting there with blood all over him and he was still holding his bottle of milk. I saw Majlinda and half her head was missing. I saw Sebahate and half her head was missing as well. I only remember hearing Majlinda and Sebahate once say, ‘Oof.’ I slowly touched my youngest son Redon with my feet but he was dead.” Prosecutor Cristina Romano asked, “Witness, how did you survive?” Mrs. Berisha replied, “It was terrible for me. I don’t know how to explain it to you. It was—it was absolutely horrible.” Romano gently urged her on: “Did you feign death?” Mrs. Berisha: “Yes, I did. I pretended I was dead. And my son Altin and Vjollca, I said to them, ‘Lie as if you’re dead.’ Because we heard the Serbs talking in their language, saying, ‘Get the trucks ready and get the bodies out of here as quickly as possible.’ ” As they were being transported, Mrs. Berisha jumped from the truck and made her way to a friendly village. Altin did not survive. Nor did her baby, Redon, who was twenty-two months old. 96  Ma s s a c r e a n d C o v e r-up

Mrs. Berisha was now a widow. When children lose their parents they become orphans. But what does a mother become when she loses her children? No word can contain the grief of that. Mrs. Berisha also sustained physical injuries: “A bullet wound to the right shoulder, grenade shrapnel in my stomach which was surgically removed but I think there is more there, grenade shrapnel went through my right thigh, and nine other lighter wounds on my legs and one on my back. There are a lot of pieces of grenade shrapnel all over my back that is still there. Stitches to my right eyebrow.” Nor were Mrs. Berisha’s trials over after her rescue by Kosovar villagers. With other displaced Kosovars she wandered in the woods near starving for a month and a half before finding her way to Albania. Serbian forces harassed the group on the journey, demanding money, taking valuables, taking young men and women who were never seen again. A sixteen-year-old girl died of fright. A man hanged himself because he did not want to see his daughters raped. “[Mrs. Berisha’s niece] went crazy at that place. She is twenty years and now lives in Albania with her father but there is nothing left of her.” Mrs. Berisha concluded her written statement: “The Serbians erased history by taking entire families away. They did not even leave photographs of our children. Our men and our children were in their prime and they did not want to die. All our men were educated, they were intellects and so all our children were excellent students. I would like to move back home to Kosova but not if there are Serbians living there.” Judge May cautioned the accused, “Mr. Milosevic, if you have no questions for this witness, then that will be understood, considering the experiences she went through.” Milosevic said he had no intention of cross-examining Mrs. Berisha. Instead he offered a statement by a man identified only as Marjan Krasniqi, signed in Albania on 9 June 1999, in which Krasniqi said that the crime was committed by a local criminal group for money. “[A]mong them were people mentally disturbed, and it was not an intra-ethnic thing,” Milosevic told the court. The presiding judge gave Mrs. Berisha an opportunity to respond: “They were police who were from the police station of Suhareke [Suva Reka]. I saw them with my own eyes,” she insisted. “They weren’t any bands of people, they were police.” She added that they wore uniforms and that Vjollca’s husband had remarked that all the police in Suva Reka were there, plus some he did not recognize. Paramilitaries also participated. The prosecutor questioned Milosevic’s translation of Krasniqi’s statement. It contained no reference to mentally disabled persons and, according to Nice, did not favor Milosevic’s position. The judges faced a dilemma Ma s s a c r e a n d C o v e r-up   97

over how to treat the statement, since Krasniqi was not in court to undergo cross-examination. While hearsay evidence was allowable under ICTY rules, a witness’s statements were generally not accepted unless the witness attested to them and, under some circumstances, the witness was shown to be unavailable and the statement to be reliable. The court accepted Krasniqi’s statement “for identification purposes,” which did not give it evidential value unless Milosevic called Krasniqi during his defense case. He did not. The evidence of paramilitary involvement left Milosevic room to argue, however, that this was a rogue group, at least in part, and certainly nothing that could be connected to him. Or could it? There was the little matter of a truckload of bodies emerging from the Danube. The Berisha family may have been slaughtered like helpless lambs, but their bodies left a bloody trail to Milosevic’s door. And under a new pro-western government in Serbia, Milosevic no longer had the power to make them disappear. Cover-up: The Mystery of the Refrigerator Truck

Ali Gjogaj, an Albanian-speaking Ashkalli from Kosova, worked for the city as a street cleaner during the war but was forced into service as a gravedigger on at least two occasions. “Gravedigger” is not quite the right word, as Gjogaj exhumed bodies as well as burying them. Sometime in April 1999 he helped to dig up ninety bodies buried in a mass grave near Pusto Selo. A week later, at a military firing range near Prizren, he worked with green-uniformed men to exhume two mass graves, one containing eighty or ninety bodies. The victims were men, women, and seven or eight children. The bodies were moved to a refrigerator truck. Later that evening the men were ordered to go to a refuse tip on the road to Suva Reka, where they loaded twenty bodies into another refrigerator truck. Milosevic hardly asked about Gjogaj’s grave digging. Instead his crossexamination sought to confuse the witness and the court. A mistake by the prosecutor over dates provided the accused with an opportunity that sent the proceedings into chaos and took two sessions and an overnight to clear up. Gjogaj’s testimony about bodies in refrigerator trucks faded into the background. But Milosevic failed in his subterfuge. The prosecutor corrected her mistake and Gjogaj’s testimony stood—with no real cross-examination. The accused’s repeated focus on exposing Kosovar witnesses as liars backfired when, as here, it left the substantive evidence untouched. Bit by bit, the prosecution disclosed the trail of the Suva Reka massacre and the journey that the victims made after death to reveal their killers. On 5 April 1999 a fisherman watched a refrigerator truck rise from the 98  Ma s s a c r e a n d C o v e r-up

Danube on the border between Serbia and Romania. A truck in the river was not so unusual. Trucks slid off the road on occasion and were recovered by local police. So Officer Bosko Radojkovic did not think much of it when he was called to the scene that afternoon. He was the senior crime technician at the police station in Kladovo, Serbia. By the time a diver arrived, completed one dive, and determined that no one was in the cab of the truck, it was getting dark. Radojkovic secured the truck and retired until the next day, when he could procure a crane to pull it out. While the truck was being pulled from the water, the diver told Radojkovic that something was protruding from the back: a human arm or leg, perhaps. Moments later the witness confirmed it: “And when the rear of the lorry was pulled out onto the bank of the river, I saw this one foot protruding, and there were another foot and an arm less visible right there.” He pointed to a photograph he had taken. “I pushed them back inside the lorry. I fastened the interior using some planks I had handy and some nuts and bolts.” Radojkovic called the local investigative judge, prosecutor, and coroner. When they arrived, the policeman and his colleagues cut through a padlock that was holding a chain wrapped to secure the doors. And what, the ICTY prosecutor asked, did you see when you opened the doors? “I saw a lot of bodies,” Radojkovic replied. Too many for the local prosecutor, who had the truck secured and turned the matter over to the district court. Radojkovic and his colleagues continued to worry. Serbia was at war. NATO was bombing and their next-door neighbor, Romania, had granted the alliance access to its airspace. Though the truck bore no license plates, signs were painted on its doors that identified it as being from Kosova. Radojkovic’s chief ordered him to paint over them. While he was at it, he found two banged-up license plates from Bor (Serbia), banged them up some more, smeared them with mud, and wired them to the truck. After Officer Radojkovic was finished tampering with the scene of the crime, he went home for the night. The district police arrived the next morning and ordered the bodies removed from the truck. Radojkovic organized a body brigade, extracting corpses and handing them on down the line to be wrapped and transferred to another truck. Two were children, a boy about five or six years old and a girl about eight or nine. The remainder, men and women, ranged in age to seventy and beyond. Most of the first thirty bodies that Radojkovic examined appeared to have been bludgeoned. A young man of nineteen or twenty, his hands tied behind him, had been shot. None wore a uniform. Over two nights the brigade removed eighty-three bodies and three detached heads from the Ma s s a c r e a n d C o v e r-up   99

refrigerator truck. Based on his experience, the witness estimated that the people had been killed only two or three days before. The district command prohibited Radojkovic, who had been dutifully photographing the truck and its extraction from the Danube, from taking further pictures. Shortly after, the Bor police chief ordered him and a colleague to destroy the truck, by then transferred to Petrovo Selo. When setting fire to it did not do the job, they blew it up. Asked how he felt about the events of that week, Radojkovic replied, “As for my feelings, I had none at the time. There was a war going on. That’s what had to be done.” Yet high blood pressure and sleeplessness sent the witness to hospital directly after the incident. Milosevic was unable to shake Radojkovic’s testimony. To stop rumors, the witness explained, he invented a story that the truck contained the bodies of Kurdish asylum seekers. In court he conceded that human trafficking existed, but denied this was such a case. Noting that Radojkovic had pushed the protruding body parts back in the truck and nailed it shut, Milosevic pressed for a reason why he “wanted to conceal this at all costs.” Radojkovic replied, “It was very unpleasant, embarrassing as a job to pull out this truck. And the job was a very time-consuming one. With those feet and arm protruding all the time, there were a lot of machinery operators, employees, workers who had to do this work in the vicinity of the truck all the time and watch this all the time, these feet and arm. So I don’t see anything unusual about the fact that we first closed the door and then continued pulling it out. There was no ill intention involved. It was just out of respect for those people. How could you come close to that truck to handle it . . . and attach a cable while a human arm or foot is protruding all the time?” Milosevic did not come close to seeing the bodies of any of the ten thousand Kosovars killed, nor even of the Serb dead. Like others who set mass murder in motion, he preferred to direct operations from the relative safety of an office in Belgrade. And what if Radojkovic had opened the truck for the men gathered on the Danube’s banks to see? What order might have been upset? As he frequently did, Milosevic asked one too many questions, allowing the witness to take the testimony where the accused did not want it to go: Molisevic: As an experienced policeman, when the bodies were being transported from the refrigerator truck to other vehicles, did you try to check the clothing and to ascertain the identity at least of some of these persons? Witness: Yes. In case of a few men, when time allowed me, I put my 100  Ma s s a c r e a n d C o v e r-up

hand into their pockets or whatever, and I didn’t find anything. In the case of a little girl, the corpse of a little girl who was about 7 or 8 years old, she had a rucksack, a little bag. Milosevic: What did she have? Witness: She had a little bag, a little rucksack or whatever. . . . [M]y colleagues who were with me, we were looking at this little girl together. We opened the bag. . . . She had a UNICEF notebook, A4 format, and in that bag were some colour crayons and a little doll. And in the notebook, there was only the drawing of a house and some little flowers, nothing else. We opened that in order to see what this was and who these people were. No documents were found on the corpses. Milosevic quickly stopped any further stories: “I think it’s enough about this phantom refrigerator lorry,” he concluded.

Caslav Golubovic, police chief in Bor, corroborated Radojkovic’s testimony. On 6 April 1999 he was called to help deal with the truckload of bodies in the Danube. Though he did not see the truck, the bodies, or the site where they were found, he confirmed that local police related the facts as Radojkovic described them. After his preliminary investigation, Golubovic called the deputy head of MUP in Belgrade, Vlastimir Djordjevic, for instructions. Djordjevic said he would call back in twenty minutes. When he did, he reported having spoken with the minister of the interior, Stojiljkovic, who wanted Golubovic to transfer the bodies to a different truck and explore the possibility of burial nearby in Kladovo. Golubovic did not think this was such a hot idea. He had been in the service for many years. The usual procedure was to autopsy corpses where there was suspicion of foul play. Kladovo lacked facilities to do this. The minister’s instructions included, “This refrigerator truck should be destroyed later, that information is not released, that none of us are to give any statements to the press or to the TV.” Over the next twenty-four hours Golubovic convinced his boss that the bodies should go to Belgrade where they could be properly dealt with—or so he thought. There is no record that any investigation occurred until two years later, when the story about the refrigerator truck emerging from the Danube was reported in the Timok Crime Review. By then Milosevic had been ousted as president and was being held by authorities in Belgrade on local charges. The accused argued that the story came out when it did to justify his transfer to the ICTY, which did not make the story less true. Ma s s a c r e a n d C o v e r-up   101

Dragan Karleusa, a detective for twenty-five years, headed the police working group that investigated the incident of the refrigerator truck after it became public in 2001. He appeared at the tribunal at the direction of his government. The investigation established, Karleusa testified, that the bodies from the refrigerator truck were taken to a place near an MUP exercise center in Batajnica, near Belgrade, on the orders of General Djordjevic. When the team contacted Djordjevic, “We emphasized that we just wanted a brief word with him. And in response to the question what he knew about these events, he said simply, ‘What happened, happened. What can I tell you?’” Their attempt to hold a follow-up interview went nowhere. Djordjevic had disappeared.2 Other high MUP officials denied knowing anything about a cover-up. But Djordjevic’s office chief, Lieutenant Slobodan Borisavljevic, confirmed his participation in the cover-up in a statement on 23 May 2001, Karleusa testified. Radomir Markovic, head of the MUP State Security Sector during the Kosova war, was the MUP team’s star witness. Markovic, who was in jail being investigated for other crimes, gave a statement to police that included information about the cover-up. In it he implicated Milosevic. Karleusa testified that according to the statement, the first meeting to plan the cover-up occurred in Milosevic’s office in March 1999: “In addition to Mr. Milosevic, the meeting was attended by the then head of public security, Mr. Vlastimir Djordjevic, General, and General Radomir Markovic, the then Minister Vlajko Stojiljkovic, and some other persons. . . . The need was discussed to conduct a clearing operation, as it were called, and also to eliminate any trace of anything that may fall within the interest of The Hague Tribunal.”3 The prosecution would introduce the statement when it called Markovic himself. Milosevic suggested alternative theories about the refrigerator truck: it involved trafficking and contraband, it had Swiss license plates, the bodies exhumed at Petrovo Selo were from the Second World War. Karleusa said that these were rumors that were not borne out on further investigation. Turning to Markovic’s statement about the planning meeting for the coverup, Milosevic charged Karleusa with ignoring what his superiors told him when they denied that the meeting had anything to do with a cover-up. It was all part of a conspiracy to send him to The Hague, Milosevic thundered. Karleusa responded, “I am not involved in any such thing and I cannot say anything about this. That is not my opinion, though.” Then Rade Markovic came to court. Nice read from the statement he gave

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to the MUP in 2001, while he was detained and being investigated on other crimes: Regarding the latest developments and articles in the press about a refrigerator lorry containing Albanian civilians’ corpses, with explicit suspicions that systematic and, in principle, very well-organised attempts to conceal the scope of crimes and remove the vestiges were made during the war in Kosovo and Metohija. I know that there was a working meeting in Beli Dvor, . . . where Slobodan Milosevic . . . most often held meetings in March 1999. Vlajko Stojiljkovic, as the Minister of the Interior, Vlastimir Djordjevic, as the public security department head, and I, attended the meeting. . . . [A]t the very end of the meeting, Vlastimir Djordjevic raised the issue of the removal of Albanian corpses in order to remove all civilian victims, if there were any, who could become objects of an investigation conducted by The Hague Tribunal. In that respect, Milosevic ordered Vlajko Stojiljkovic to take all necessary measures to remove the corpses of the Albanian civilians that had already been buried [emphasis added]. The evidence was practically an admission that Milosevic and his top lieutenants knew the actions they had directed in Kosova were crimes, subject to the tribunal’s jurisdiction. Milosevic badly needed to discredit it. Relying on his skills at manipulation and intimidation, he almost succeeded. Confronted with his signed statement in the intimidating presence of his former boss, Markovic recanted: “[T]his statement does not fully correspond to what I had said. Rather, this is a free interpretation by the officer of the state security sector who conducted an interview with me as we were trying, together, to come to certain facts as to what had happened.” When examined by Milosevic, Markovic agreed to every proposition put to him. Milosevic suggested that he had been tortured, though no evidence of torture was produced, even from the witness. Nice’s reexamination got nowhere. Markovic insisted that he had not read the statement bearing his signature at the bottom of every page. Nor did he know anything about the refrigerator lorry other than what he read in the newspapers. The remarkable about-turn of Markovic and other insider witnesses when facing Milosevic brings to mind Idries Shah’s observation that people incorporate coercive institutions within themselves and will relapse into obedience as long as the patterns remain.4 Faced with Markovic’s intransigence, the prosecution called the MUP officers who had taken the statement he now disavowed. Zoran Stijovic, the

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investigating officer, testified that the issue of the refrigerator truck came up during questioning about other crimes. At all times Markovic had the right to refuse to answer—and occasionally availed himself of it. Olivera AntonicSimic duly recorded his statement, produced a printed copy for Markovic to review, made corrections, and gave him a final copy to sign, which she and Stijovic cosigned. Milosevic took a different tack, again suggesting that Markovic had been blackmailed and offered a change of identity if he would make charges against Milosevic. Stijovic said he knew nothing about this. The accused referred to Markovic’s testimony that in taking the statement Stijovic had made a “liberal interpretation” of what Markovic had said, then forbade him to respond. Judge May admonished the accused, “You’re not going to get away with putting half of something to anybody,” and asked the witness if Milosevic’s inference was true. “That is not correct,” Stijovic said, adding that he could not interpret Markovic’s motives for recanting. The witness was clearly unhappy at having to tell an inconvenient truth. At one point he plaintively asked Milosevic, “I’m sorry that I’ve been brought into this position too, but what can I do?” Stijovic stressed that he had not come to testify of his own free will but had been ordered by his government to do so. Yet another time, Judge May interrupted Milosevic’s cross-examination to allow the witness to answer Milosevic’s assertion that Markovic testified to having failed to read the statement before signing it. Again Stijovic replied, “That is not correct,” but he then offered Milosevic his recollection that nowhere in the statement did Markovic refer to the bodies having been transported from Kosova to Serbia. This did not prevent Milosevic from accusing Stijovic of taking Markovic’s statement in “a deceitful way,” on the assumption that it would not be used in court. Milosevic, who never considered himself bound by court rules on telling the truth, elaborated on Markovic’s testimony. “[He said] that you gave him an already-typed-out statement and under these circumstances, under pressure, that is, and after a year and a half in solitary confinement, he had to sign this statement, so practically under duress.” “That is not correct, Mr. Milosevic,” Stijovic replied. “I am not here of my own free will also, but I am here under oath as well.” It was left for Nice to correct Milosevic’s misrepresentation. “And just to assist you, Mr. Stijovic, what happened with Mr. Markovic was this: The accused put to Mr. Markovic in a single sentence not anything about duress. He suggested to Mr. Markovic the statement, ‘It was brought to you written the way it stands; right?’ to which Mr. Markovic just gave the answer, ‘Yes.’ ” 104  Ma s s a c r e a n d C o v e r-up

Enjoying his manipulations, Milosevic then misrepresented a statement he allegedly had just received from Stijovic’s colleague Olivera AntonicSimic. Nice read the actual statement, then brought Antonic-Simic to court to confirm it. She corroborated the evidence given by her colleague. Nice: I think you saw on television or some other way the evidence of Mr. Stijovic; is that correct? Witness: Yes. Nice: Did you disagree with any part of it that he gave? Witness: No.5 The incident involving Stijovic, Antonic-Simic, and Markovic demonstrates the manipulations that the court was up against in dealing with Milosevic acting as his own attorney. Not only did he baldly misrepresent testimony, but he used his still considerable personal power to bring his former loyalists back into the fold. When he confronted Markovic, Lilic, and others of his inner circle who testified for the prosecution, they were unable to stand up to him, evidencing the quality for which Milosevic had selected them in the first place. It made them challenging witnesses for the prosecution. So where did Shyrete Berisha’s children and the other Suva Reka victims end up? The prosecution investigator John Zdrilic testified that some remained in Suva Reka, where they were exhumed and identified by relatives. Others, initially buried at the army firing range south of Prizren, were dug up and transported by refrigerator truck to Serbia. Thirteen men, fourteen women, nine children, and one fetus were found at Batajnica 1, the section of army property near Belgrade controlled by the MUP.6 They may well have taken a detour by way of the Danube, but further testimony on this point was lost to the court when a prosecution witness, scared out of his wits, refused to testify. Protected witness K-12, who appeared in court under subpoena, preferred jail to telling what he knew. For the first time in the tribunal’s history a trial chamber charged a witness with contempt of court for refusing to testify. When Nice called K-12 on Monday, 3 June 2002, he answered only three basic questions before stating, “I don’t want to answer that.” His agitation grew with each question, until Judge May advised him, “You’re here to tell the truth.” K-12 responded, “The truth is I can’t testify.” Despite the chamber’s further prodding the witness remained silent. Milosevic smiled broadly. Judge May adjourned his testimony and cautioned, “You’re to speak to a member of the prosecution. . . . It’s your duty to tell the truth. You also should carefully review your position generally.” Ma s s a c r e a n d C o v e r-up   105

When K-12 returned the next day it was merely to formalize his refusal to testify. He answered Nice’s initial questions by stating, “Please tell the judge I have had enough of psychological processing for the last two days. Leave me alone. I’ll go crazy this way.” Judge May advised K-12 of the court’s power to hold him in contempt for his refusal to answer the prosecutor’s questions. Still K-12 refused, “If they cannot understand why I cannot testify, I cannot explain it to them better. If they think I am guilty of something, let them put me in jail. I can sit in jail for as long as they keep me there. I have a greater problem than being in jail.” Judge May charged K-12 with contempt of court and directed the prosecutor to initiate proceedings. He advised the witness that counsel would be appointed for him on his request. Tribunal rules set the maximum penalty for contempt at imprisonment for seven years or a fine of 100,000 Euros ($93,000 U.S. at the time), or both.7 K-12 was a protected witness whose identity was unknown to the public based on a reasonable fear for his safety. According to the prosecution’s pretrial brief, K-12 was to testify about steps taken by the Serbian police and Yugoslav army to hide evidence of crimes. Given his occupation as a truck driver, he may have been involved in transporting bodies from Kosova to Serbia to cover up crimes before the entrance of NATO troops. After a hearing the trial chamber, Judge Kwon dissenting, vacated the finding of contempt. The majority cited the conclusion of a threat assessment ordered by the court: “Given the extreme nature of the testimony the witness could give, the possibility for retribution on the family cannot be ruled out.”8 Judge Kwon felt that the court was being overly cautious, since the witness had not produced any evidence of a threat. He wrote, “What K-12 is refusing to do is simply give evidence in front of the accused upon an ungrounded belief that the accused will leak his identity.”9 K-12 was not the only witness to the cover-up who was scared. After Dragan Karleusa made public his team’s findings, he knew he was dealing with fire. “I received several letters with threats, very serious threats, including death threats,” he told the court, adding that he would not have testified without the subpoena. The same was true for Zoran Stijovic, the police officer who took Markovic’s statement: “When Mr. Markovic appeared in court, . . . there were very serious threats and pressures directed at me personally that in this way or that way I should change my statement before this Court. . . . I did not come here as a result of my own wish, my own free will, but through the decision of my government. And as . . . a civil servant who respects his own government, I said the truth.” 106  Ma s s a c r e a n d C o v e r-up

Witness intimidation had a significant impact on the prosecution’s case, as it would in any trial. From the beginning Milosevic demonstrated a reach far beyond his jail cell. In the trial’s early days none of his inner circle would come forward, no matter how disgruntled they were over his ill treatment of them—and Milosevic, who demanded absolute loyalty, exhibited none toward others. Exacerbating the reluctance of prospective witnesses, the FRY government refused to waive prosecution for revealing state secrets. Gradually, through Del Ponte’s indefatigable efforts and pressure on the government from Washington to cooperate with the tribunal or lose foreign assistance, high-level insiders began making their way to The Hague. Milosevic’s supporters in Serbia’s feared security service stepped up their efforts at “persuading” potential witnesses that it would be in their interest to stay home. The prosecution increased security measures, among them providing new identities and relocating witnesses and their families to other states. Those who did appear in court were subjected to Milosevic’s intimidating personality and, at least in some cases, a well-timed telephone call to their families at home. It made for unpleasant surprises in court, as the prosecution faced witnesses whose testimony veered 180 degrees from what was expected, and played havoc with their case. The prosecutor was left trying to bring his witness back into line on reexamination, or later arguing to the court that the witness had lied. That did not make for very good evidence. It is a problem that prosecutors and judges must anticipate in these types of trials. Justice cannot be blind to the intrigues of an organized criminal element at work. Evidence of a cover-up tied directly to Milosevic showed that he knew serious crimes were committed in Kosova. Even if he did not order them he acted to hide them, knowing that they could bring him before the ICTY. Having command responsibility over the MUP, de facto or through the Joint Command, together with the cover-up was enough to convict him. As his once loyal police took the stand one by one to testify against him, Milosevic must have become unsettled. While he could bully and cajole some back to the party line, he could not stop the bleeding of information and witnesses from Belgrade coming from those who had locked him up, then whisked him off to The Hague in a clandestine operation. Chief among them was Zoran Djindjic, the reform-minded, pro-western prime minister who was actively cooperating with Del Ponte. His government waived state secrets, served ICTY subpoenas, and ordered police and other government employees to cooperate with prosecution investigators. Though Milosevic was out of power and his supporters no longer ran the government, it would be foolish to think Ma s s a c r e a n d C o v e r-up   107

that the house built by Milosevic had been thoroughly cleansed of its criminal elements. In less than a year Djindjic’s fate would prove that it had not.

Milosevic relied on General Obrad Stevanovic, assistant minister of the interior, to defend the Serbian police against charges that they had covered up crimes at his direction. Stevanovic was none too helpful. “I have absolutely no explanation for what happened because it is quite illogical that somebody would dig up some people who had already lost their lives in order to bury them so far away from Kosovo and Metohija. In my opinion, that is still a great mystery.” When Milosevic pressed Stevanovic to identify who would do such a thing, he gave a confused answer, “Well, the person with the motive was anybody who had the intention to prove alleged crimes and ascribe them to the country and not somebody who wanted to cover them up at all from anyone outside.” It appears he meant the KLA or, as Milosevic suggested to another witness, NATO. Nice pointed out the illogic of those suggestions: “How could NATO, the UN, or any other country have access to Serb-controlled areas of military significance in North Serbia so as to deposit bodies there?” When Stevanovic replied that he had not implicated NATO, Nice pressed on: “Is this a serious answer, Mr. Stevanovic, . . . that you’re saying someone unknown may have taken all these bodies that come from Izbica and all sorts of other places, moved them to places that are in the secure control of the Serb authorities with vehicles, dig the holes, and put them in it? Are you really suggesting that?” In a less than brilliant response, the witness answered, “I said that was my assumption. I have no reasonable explanation for it. You had one assumption, I put forward another possible assumption. There are many other assumptions that might be put forward.” The prosecutor questioned Stevanovic about Markovic’s statement, since Markovic had identified Stevanovic as a participant in the cover-up meeting with Milosevic. It was too much for the witness: “I really cannot concentrate enough. I cannot focus enough. I don’t know what you’re referring to.” Though he went on to answer Nice’s question, Stevanovic was soon having to answer for the notes he had written in his contemporaneous diary during the meeting. The phrase “no corpse, no crime” followed the word “president” on a page that also included “they will use evidence of crimes to justify aggression” and “when mission arrives we will find it more difficult to. . . .” But Stevanovic had an explanation for it. “No corpse, no crime,” he said, referred to the actions of terrorists, their intention to dig mass graves and blame Serbs for the murders. He tried clarifying for Judge Bonomy what he meant: 108  Ma s s a c r e a n d C o v e r-up

“Allow me to . . . explain it in another way. I’ve already said that they are . . . removing [bodies] from the police . . . who is going to come in and prove a crime, and then they group them and collect them together in mass graves later on, which they want to show as being the consequence of crimes committed by Serb forces, and in that context I wanted to explain the existence of this alleged mass grave in Pusto Selo. When we learnt of that grave site, then we remembered the story and what was said at that meeting about all this.” Judge Bonomy was not convinced: “Well, I have to say at first sight that’s a very imaginative reading of what’s here. There’s no reference to mass graves, burying bodies, or anything of that nature. What’s referred to is obliterating the evidence of crimes.” While Stevanovic proved once more that he was Milosevic’s obedient servant by putting forth an unbelievable story, he was unable to help his former boss’s cause. The witness’s contemporaneous diary drowned out the explanation concocted after the fact. Once again Milosevic’s witnesses not only failed to advance his defense but made his position worse.

On the last day of the prosecution’s Kosova case, Milosevic demanded that the trial chamber hold the Dutch lawyer Michail Wladimiroff, one of the three amici curiae, in contempt for statements published in a Dutch newspaper that indicated Milosevic would be found guilty of at least some of the charges. After an investigation the court revoked his appointment as ­amicus. Wladimiroff ’s legal competence was not challenged. A highly skilled lawyer with extensive experience before the ICTY, in court he had served the trial chamber and Milosevic well. But given Wladimiroff ’s statements, presenting at the very least an appearance of partiality, the court made the correct decision. As an officer of the court he had a duty of care to say nothing that might bring the fairness of the proceedings into question. As Nice offered, the incident provided a textbook example of why counsel in a case should never talk to the press. He might have added “for attribution,” since he himself was known to speak with a reporter or two on background. The Smoking Gun

Television and movies have trained us to want smoking guns, eyewitnesses, cronies who betray their former partners in crime, and best of all, dramatic courtroom confessions. Real life does not follow TV scripts. Nevertheless, prosecutors daily manage to put murderers, conspirators, and other crimiMa s s a c r e a n d C o v e r-up   109

nals behind bars. And they did so at the Hague tribunal. The prosecution’s evidence to this point in the trial strongly suggested that Milosevic would view the rest of his life from behind prison bars, as Wladimiroff had speculated. Of course this was for the judges, not any observer, to decide, and Milosevic’s answering defense case was still to come. The prosecution completed most of its Kosova case by early September 2002, seven months after the trial began. A few more witnesses would be heard during the Croatia evidence, after agreement on conditions for their appearances was finalized. Rebuttal witnesses might have been called, after the defense case, had the trial not ended prematurely. But for the most part the Kosova case was done. The lead prosecutor on this part of the case, Dirk Rynevald of Canada, made way for Hildegard Uertz-Retzlaff, who would handle Croatia. The first phase took nearly a hundred trial days and was adjourned three times for a total of nearly six weeks because of Milosevic’s poor health. The health problems of the accused prompted Judge Robinson to suggest the appointment of counsel, which Milosevic vehemently rejected. By August, on the recommendation of his treating physician, the court reduced its sitting time. Further lengthening the process, Milosevic insisted on cross-examining all witnesses who submitted written statements in lieu of testimony, a timesaving device adopted by the prosecution, as the accused’s cross-examination ate into the time available to present the case against him. His inability or unwillingness to follow the rules on appropriate questioning added more time, which the court then extended in hopes that Milosevic would eventually ask questions relevant to the charges against him. The demands on Judge May were severe, as he continually tried to rein in Milosevic’s abusive questioning while keeping him on a track that he had no intention of following. If it had not been clear at the beginning, by this point the court’s major mistake was obvious: allowing Milosevic to represent himself when he insisted on using the trial for his own nonforensic purposes, to make a political case to the public that had little to do with the serious charges against him. At the court’s insistence, the prosecution had significantly cut its case. It called fewer witnesses, reduced the number of crime scenes, and presented a substantial amount of evidence in writing. Documents were extensive, running to tens of thousands of pages, which caused Milosevic and the amici to repeatedly complain to the court. There was simply not time enough to review them all. Yet tribunal rules required the prosecutor to hand over any document containing potentially exculpatory matter. The prosecution rightly erred on the side of more rather than less disclosure. 110  Ma s s a c r e a n d C o v e r-up

The prosecution was also challenged to secure witnesses from Milosevic’s inner circle. The few who were willing to testify were obstructed by a government reluctant to waive prosecution for revealing state secrets. The testimony of those who took the stand was problematic, as many were steeped in Milosevic’s worldview or susceptible to his dominating personality, leading them to recant or give contradictory testimony. Still the prosecution needed them for the inside information unavailable elsewhere, particularly since the government in Belgrade was unwilling to provide access to its archives. The prosecution’s battle for access began before the trial commenced and would continue beyond the presentation of its case. Survivor witnesses had a more dominant role in the Kosova case than they would in either Croatia or Bosnia. Because this was the first trial of crimes committed in Kosova, the prosecution had no other judgments to rely on, so it had to prove that the crimes occurred. Even so, the witnesses’ testimony was limited by time constraints. When the prosecution opted to introduce the majority of it in writing, the public heard the evidence largely through Milosevic’s cross-examination, an unsatisfactory experience for survivors whose suffering was caused by his thirst for power. For some, however, it provided an opportunity to confront him, like the young VJ soldier who denounced him for issuing shameful orders and an old man who, in light of the massacres of women, children, and old people, demanded to know if Milosevic had any feelings.10 To sustain its case the prosecution had to prove that Serbian forces committed war crimes and crimes against humanity, and that Milosevic was responsible for them, either by planning, ordering, or aiding and abetting in their commission (either alone or through participation in a joint criminal enterprise), or by virtue of his superior position over the perpetrators (if he knew or had reason to know about the crimes and failed to prevent or punish the perpetrators). Evidence of Crimes Reveals Criminal Plan

Without question, the prosecution established that Serbian forces committed massive crimes during the period of the indictment (1 January to 20 June 1999). Over a hundred witnesses—survivors, soldiers, diplomats, and foreign observers—testified about the deportation, forcible transfer, and murder of thousands of Kosova Albanians. Former paramilitaries and soldiers testified about being ordered to kill Albanian civilians, burn their property, and drive them out of their homes. The deportations and property destruction, often accompanied by massacres, followed a pattern, whereby Ma s s a c r e a n d C o v e r-up   111

villages were surrounded and fired on, residents were ordered out and sometimes killed, property was looted and houses burned, and finally residents were forced to join a long march of refugees out of the province. The attacks occurred close in time. Serbian forces routinely destroyed identity documents and license plates of Kosova Albanian refugees, showing an intent to prevent their return. Islamic religious and cultural sites associated with Albanians were deliberately targeted by Serbian forces, who damaged or destroyed more than one-third of all mosques. Undercutting Milosevic’s defense that NATO bombing or the KLA caused the massive refugee flow and was responsible for most civilian deaths, an expert study showed that there was no correlation. The forced removal occurred in blitzkrieg fashion, in a pincer movement across Kosova that funneled Albanian refugees to the borders. Half the population, nearly a million people, crossed into Albania and Macedonia, the majority within the first two weeks of the war. Hundreds of thousands more were displaced internally, seeking refuge with neighbors and relatives, driven into the mountains and forests of the neutral Republic of Montenegro. Most of the murders of civilians also occurred in the first weeks of war. While people can move en masse spontaneously, Serbian authorities had organized transportation—providing buses and adding trains between Kosova’s capital and the border—which demonstrated advanced planning. Other evidence that the ethnic cleansing of Kosova was not a spontaneous movement of the Albanian population came indirectly from a high-level army officer and from Milosevic himself. According to the KVM monitor Colonel Richard Ciaglinski, on the eve of war a VJ officer showed him a plan to eliminate the KLA, after which the VJ would “rid Kosovo of all Albanians forever.” In October 1998 Milosevic himself suggested to Generals Clark and Naumann of NATO that the problem of a numerically dominant Albanian population would be resolved in the spring of 1999. While Milosevic may have brought into question the credibility of a few witnesses on certain points, he was not successful in discrediting the cumulative impact of their testimony. The prosecution’s evidence was sufficient to establish that Serbian forces committed widespread and serious crimes on a vast scale, crimes that violated international humanitarian law. Individual Responsibility under ICTY Statute Article 7(1)

While it may appear obvious to those familiar with the former Yugoslavia during the 1990s that Milosevic held ultimate power over military, police,

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and paramilitary forces, as well as the governments of Serbia and the FRY, the law required the prosecutor to prove that he did. With regard to Kosova it was not the challenge that it would be for Croatia and Bosnia, where Milosevic lacked legal authority. Milosevic was the president of the FRY and the Supreme Defense Council. He had control over the military and civilian authorities by law (de jure) and in reality (de facto). As Radomir Markovic, former head of the state security service, testified, “The policy of a country is charted by its president with his associates, and the Minister of the Interior has to follow [it]. There is no doubt about that. The President creates state policies. We were only executive bodies who followed orders.” The constitution and laws provided that as president of the FRY, Milosevic was commander in chief of the army to which the MUP is subordinated in time of war.11 Markovic also testified that paramilitaries were incorporated into existing military units. In addition, Milosevic had de facto control over military and police forces through a back channel he had created to circumvent officers who opposed fighting a war with NATO (the Joint Command), according to Markovic and John Crosland, British military attaché to Belgrade. General Klaus Naumann of NATO testified that in his negotiating attempts to prevent a war in Kosova, General Perisic took him and General Wesley Clark aside and said, “If you want to achieve something, you have to seek another meeting with President Milosevic, since it’s only him who can make the difference, and it’s only him who can give the instructions.” The prosecution met its burden of establishing Milosevic’s power and authority, both de jure and de facto, without difficulty. Milosevic did not challenge it. The Plan

The prosecution then had to establish that Milosevic was connected to the crimes. Was he involved in planning and overseeing the implementation of a criminal campaign? Throughout the trial Milosevic derided witness testimony as lacking credibility because it was illogical. Using his measure, it defies any logical explanation to maintain that dozens of similarly patterned attacks, involving large numbers of troops, police, and military hardware, could occur all across Kosova in a two- to three-day period without planning and coordination at the highest level. The attacks, for the most part, were not against the KLA. They most certainly were not against NATO. Serbian forces attacked civilians in operations that began even before the first NATO bomb was dropped.

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The prosecution’s military experts testified that crimes on such a scale could only have been perpetrated with planning, authority, and knowledge at the highest level, well in advance of the plan’s implementation.12 Milosevic was commander in chief of the army, controlled the police, headed the Supreme Defense Council, and controlled all military action in Kosova through his back-channel Joint Command. Once the crimes were established they provided the smoking gun in a simple equation: crimes committed in a way that required planning and coordination at the highest level, plus Milosevic with ultimate control, equals Milosevic having planned the crimes. Command Responsibility under ICTY Statute Article 7(3)

Any crimes that did occur, Milosevic argued, were perpetrated by “rogue” elements among Serbian forces. Even if he did not order them, the evidence showed that Milosevic knew his forces were committing human rights violations on a massive scale and did nothing to stop or punish them. This alternative theory of guilt comes under the rubric of command responsibility, which is codified in the ICTY statute as article 7(3): “The fact that any of the acts referred to in articles 2 to 5 [war crimes, crimes against humanity] of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” Numerous witnesses testified that Milosevic knew what was going on in Kosova. The head of Milosevic’s state security service, Rade Markovic, testified to having given Milosevic detailed, written, daily briefings on Kosova, plus additional ones as requested. Other witnesses said that they specifically advised Milosevic of crimes his forces were committing: a foreign diplomat, Paddy Ashdown; a journalist and community leader, Veton Surroi; and a politician, Mahmut Bakalli. Human Rights Watch published and sent to Milosevic and other Serbian authorities a series of in-depth reports and documentation on crimes against humanity. Ambassador Knut Vollebaek, chairman of the OSCE, saw Milosevic on three occasions when he informed him of the atrocities being reported by KVM verifiers. On one occasion he described seeing a large number of refugees fleeing with meager belongings into Macedonia. Milosevic’s flippant response was to suggest that they were going on a picnic. At the outset of NATO bombing Dr. Ibrahim Rugova and

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Adnan Merovci were put under house arrest, then brought to Belgrade for an audience with Milosevic. Both men testified that they told him of massive forced movements of the civilian population, as well as the disappearances and reported killings of Kosovar Albanian leaders. The evidence showed that Milosevic had more than “general knowledge” of numerous crimes committed by his forces against the Albanian civilian population across Kosova. Yet according to the prosecution’s evidence few disciplinary actions were taken, and virtually none against officers for command responsibility. Indeed nearly all officers received commendations or promotions, or were retained in their positions. All the evidence to this time indicated that Milosevic wielded ultimate control over civilian and military society, that at a minimum he knew his forces were committing widespread crimes against the Albanian population and yet did nothing to deter or punish them. Cover-up

When someone acts to cover up a crime—to hide dead bodies, for example— a logical assumption is they do so because they know that what they have done is criminal and do not want to be caught. For legal purposes, the coverup tends to prove knowledge and criminal intent. For those in authority, covering up a subordinate’s crime is also a crime under article 7(3) of the ICTY statute, because it shows knowledge and failure to punish. The prosecution presented extensive evidence of efforts to hide corpses of civilians from Kosova, including exhumation in Kosova and reburial in Serbia. Evidence of events surrounding the emergence of a truckload of bodies from the Danube amply illustrated Belgrade’s cover-up efforts and Milosevic’s direction of them. The clearest evidence connecting Milosevic to the cover-up was the written statement that the former head of his state security service gave to the police. Though Radomir Markovic attempted to disavow it in court, the prosecution brought to court the investigating police officers who took the statement, and they attested to its accuracy. Testimony of the local officers who dealt with the bodies in the refrigerator truck corroborated that the operation was directed from the highest level in Belgrade. The bodies were reburied on army property near Belgrade, where other mass graves of Albanians were discovered. A prosecution exhumation monitor (Robert Fulton) and one of the men involved in exhuming bodies from Kosova mass graves and reburying them in Serbia (Ali Gjogaj) also described the operation for the court. The exhumation and reburial of bodies

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to keep them from the eyes of ICTY investigators was the clearest evidence that Milosevic’s forces committed war crimes and crimes against humanity, and that he knew of this and sanctioned it. Despite reducing its case, the prosecution met its burden of proving Milosevic’s responsibility for the crimes charged in the Kosova part of the indictment, as the court ultimately held in its decision following the close of the prosecution’s case.13 It was up to Milosevic to present evidence that would bring his culpability into question.14

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M i l o s e v i c’s R i s e t o P o w e r Chapter 6

Milosevic Plans for War in Croatia

The duel between Slobodan Milosevic and Geoffrey Nice continued in their opening statements for the Croatia phase of the three-part indictment on 26 September 1992, six and a half months after the trial began. Speaking for a little more than an hour, the lead prosecutor emphasized that the trial was a legal proceeding, not a media drama. By contrast, Milosevic presented his defense as if it were a production by Cecil B. DeMille, enlarging the focus to include historical and international processes. Before Nice opened the prosecution’s case, the ICTY chief prosecutor, Carla Del Ponte, protested that the government in Belgrade’s lack of cooperation was severely restricting the case that could be presented. “With regard to the segment of the trial opening today, Yugoslavia continues to hold the key to irreplaceable evidence, such as potential witnesses who will need state authorization to travel and testify, or civilian and military archives, access to which is still denied to date.” By the time the prosecution completed the bulk of its Croatia case, nothing had changed. Potentially significant evidence remained under Belgrade’s control, and the chamber was not disposed to do anything about it. As if in answer to media criticism in the Kosova case that the prosecution failed to produce a “smoking gun,” Nice cautioned the court: “Bear in mind that criminals don’t leave traces or paper trails.” He also reminded the court that insider witnesses often have their own agendas and therefore do not always tell the entire truth. “Should they not be called?,” he asked rhetorically, answering that it is preferable to call them, relying on the prosecution to uncover the

Croatia Charges For Croatia, Milosevic was charged with thirty-two counts of war crimes and crimes against humanity. The prosecutor withdrew a genocide charge at the beginning of the trial. The crimes ranged from murder, torture, rape, and deportation to destruction of villages and religious monuments. The prosecutor alleged the forcible transfer of at least 170,000 Croat and other non-Serb civilians from territory in Croatia marked for Serb dominance by Milosevic or the joint criminal enterprise of which he was a part. (For other members of the jce see note 19 to the Introduction.) The underlying crimes were a necessary element of the plan to carry out a criminal purpose—to ethnically cleanse one-third of Croatia of its non-Serb population so that the remaining Serbs would become part of an enlarged Serbia, as captured by a popular saying of the day, “Only unity saves the Serbs.” Milosevic’s guilt rested on proving at least one of two theories of liability: joint criminal enterprise and command responsibility. Under joint criminal enterprise theory, Milosevic was allegedly part of a plan to attach an ethnically cleansed part of Croatia to Serbia. It was alleged that he provided direction to the Croatian Serb leadership and gave them financial, material, and logistical assistance to fight for independence from Croatia. It was further alleged that he supported armed forces from Serbia to fight in Croatia, including forces under the Serbian mup , and that he exerted effective control or substantial influence over the Yugoslav People’s Army (ina ), which helped carry out the ethnic cleansing. The indictment charged that he used the Serbian state-run media to foment war through false and exaggerated propaganda describing Croat attacks on Serbs living in Croatia. Alternatively, the crimes were a foreseeable consequence of the joint criminal enterprise: that is, those who wanted the area free of non-Serbs had to have known that the only way to accomplish this was to force non-Serbs out through terror and violence. According to the indictment Milosevic either

truth. His comments would prove particularly relevant to the prosecution’s Croatia witnesses. Nice also suggested prophetically that danger might increase during this phase of the case. The region was volatile. Many war criminals and war profiteers remained at large, often in positions of power. Despite the low regard in which the tribunal was generally held in Serbia, its proceedings were carefully watched for what they might reveal about the guilty but unindicted. A number of these had cause to worry. The accused used his opening statement, three times as long as the prosecution’s, to proffer the thesis that foreign nations and the “international community” were responsible for Yugoslavia’s breakup. They provoked a civil war that he tried to stop at every opportunity, he said. As he had in the Kosova case, Milosevic attempted to shift the focus from his actions onto his country. While the prosecution pursued a case of individual responsibility, Milo118  M i l o s e v i c’s R i s e t o P o w e r

directly participated in the joint criminal enterprise or aided and abetted it. An aider and abettor provides assistance that facilitates a crime but does not organize or order its commission. He need not intend the criminal outcome but must know that others do, and yet assist them.

Under the command responsibility theory Milosevic was charged with being behind the plan to

enlarge Serbia through ethnic cleansing and in charge of its implementation. Unlike with the Kosova indictment, the prosecution faced an additional hurdle. Milosevic was president of Serbia without legal authority over the Croatian Serb leaders and the military forces they directed. To establish guilt under command responsibility theory, the prosecutor had to show that Milosevic exercised de facto authority or substantial influence over the criminal events it was alleging. This was more difficult. To make its case the prosecutor presented documentary evidence, including telephone intercepts and testimony from experts, insiders, international interlocutors, and former Yugoslav politicians. There was little victim testimony. In addition to offering testimony of crimes from other icty trials, the prosecutor submitted as much written evidence as possible to comply with a fast-approaching, court-mandated deadline for completion of its case in chief.

As in the Kosova case, the prosecutor had to be selective regarding the underlying crimes it

presented. Time did not allow for a complete exposition of the murders, rapes, massive forced movements of people, use of prison camps, and extensive destruction of cities, towns, villages, and cultural monuments. The indictment focused on approximately a dozen sites. For the purposes of this book I will discuss Vukovar and Dubrovnik, crime sites for which significant evidence was presented live at trial.

sevic fashioned it as a case against the Serbian people. Tragically, many in Serbia, though by no means all, accepted his characterization of a trial that was designed to negate collective guilt. Two claims raised by Milosevic were potentially relevant to a defense, if proven: that the war in Croatia was a civil war in which Serbia and the FRY were not involved, and that Serbia helped the Croatian and Bosnian Serbs defend themselves against an aggressor. He did not deny that war crimes were committed, but maintained that they occurred on all sides and were not policy. He characterized his help to his co-nationals as self-defense. If true, this was relevant to the extent that it negated any plan to extend Serbia’s territory. Self-defense might also have been relevant to answer individual charges of murder and other crimes, but Milosevic did not use the defense in this way. Milosevic characterized his role as that of a peacemaker throughout the M i l o s e v i c’s R i s e t o P o w e r   119

Yugoslav crisis. The challenge for him was to show that he was a power broker while disclaiming control or influence over the Croatian Serbs. The prosecution anticipated Milosevic’s dual role and public dissembling. As Nice said in his opening statement, the accused conducted a proxy war, supplying and supporting local Serb forces in Croatia while publicly disavowing them to deflect international criticism. Milosevic’s opening statement showed that he would continue to participate in the trial, but on his terms. It insured a continued struggle between Milosevic and the court and prosecutor, as the latter two attempted to focus the accused on the legal case against him and he repeatedly argued against a case not charged—the collective guilt of the Serbian people.

President Stjepan Mesic of Croatia opened the prosecution’s Croatia case by making the vital connection between Milosevic and the war in Croatia. These two leading figures of Yugoslav politics had done battle many times and continued it with unabated hostility in ICTY courtroom 1. Mesic gave his view of how Yugoslavia erupted in flames. He traced the tinder back to Milosevic’s infamous speech at Gazimestan, site of the six hundredth anniversary celebration in 1989 of the mythified Serb defeat by Ottoman forces in the battle of Kosovo Polje. Contributing to the orchestrated drama of the event, Milosevic, then president of Serbia, literally descended from the sky (he was flown in by helicopter) to speak before an assembled crowd of hundreds of thousands. His most famous—and, to some, threatening—lines were: “The battle of Kosovo contains within itself one great symbol. That is the symbol of heroism. It is commemorated in our songs, dances, literature and history . . . Six centuries later we are again involved in battles, and facing battles. They are not battles with arms, but these battles cannot be excluded” (emphasis added).1 It was the first time anyone in Yugoslavia had mentioned war as an option for resolving disagreements among the republics over Yugoslavia’s future, and it aroused fear in the other republics. Milosevic had already changed the map of Yugoslavia by taking control of Montenegro and suppressing the autonomy of Kosova and Vojvodina within Serbia, in violation of the Yugoslav constitution of 1974. As events progressed, Mesic realized that a federal Yugoslavia was no longer possible. By 1990 it had lost two of its three unifying pillars: Josip Broz (“Tito”), who died in 1980, and the Yugoslav League of Communists, which disbanded in January 1990. Only the Yugoslav People’s Army remained, and Milosevic was fast making it a Serb army. 120  M i l o s e v i c’s R i s e t o P o w e r

Mesic was a leading Croatian politician throughout the war in Croatia and close to, if often at odds with, Franjo Tudjman, independent Croatia’s first president. He was active in the Croatian nationalist party (Croatian Democratic Union, or HDZ) until 1994, prime minister in 1990, president of the Croatian parliament between 1992 and 1994, and successively vice president and president of the federal Yugoslav presidency, resigning in December 1991 after Croatia achieved independence. At the time of his appearance in The Hague he was the democratically elected president of the independent state of Croatia. Mesic and Milosevic took up old arguments, each accusing the other of responsibility for Yugoslavia’s breakup, the descent into war, and the death and destruction that followed. Mesic accused Milosevic of fomenting war through orchestrated rallies, propaganda, and incidents staged by military counterintelligence (KOS).2 Milosevic countered that Croatia had disenfranchised its Serb population when it enacted a new constitution, eliminating Serbs as a constituent people. The ouster of Serbs from government jobs followed, he said. The accused also faulted the HDZ for adopting Fascist symbols from the Second World War, eliciting fear in Croatian Serbs who had been victims of Ustasha terror only forty years before. Mesic, while deploring Croat extremism and provocation, claimed that Milosevic and his allies exploited Serb fear in their desire to take control of Croatian lands with Serb majorities. Criminal elements in Croatia, he lectured Milosevic, could not be eliminated by killing people and destroying towns. Mesic testified that Milosevic “Serbianized” and took control of the JNA to effect his plans for Serbian unity. As Yugoslavia disintegrated, the JNA faced its own demise. “The army was interested in finding a sponsor . . . and they saw it in Slobodan Milosevic, because they considered that he would take over the greatest portion of the Yugoslav territory and that that would be sufficient to maintain the army and military mechanism. And that is why the army, from the very outset, took Milosevic’s side and executed all his tasks.” Mesic was simplifying. The army did not support Milosevic from the outset. They were suspicious of his growing nationalist rhetoric. Still, he exerted substantial influence by cultivating its top brass and the minister of defense, Veljko Kadijevic. For a time their interest in preserving Yugoslavia coincided, though Milosevic went further, pursuing a shift in power from the constituent republics to a centralized state, which Serbia (and he) would dominate. The once multiethnic army3 began to lose Slovenes, Croats, Kosovars, Macedonians, and Bosniaks as it increasingly acted as the army of the Serbs.4 Other witnesses would testify about Milosevic’s purge of potentially disloyal M i l o s e v i c’s R i s e t o P o w e r   121

generals. While Milosevic argued that the JNA remained multiethnic, Mesic responded that the few non-Serbs who stayed did not change its Serbian character: “It was an army that was loyal exclusively to Slobodan Milosevic until the very end.” Milosevic’s own people later confirmed this. General Miloslav Djordjevic, head of the coordinating office under the Serbian Minister of Defense, testified that the federal defense minister formally appointed generals, but “in reality it was not like that. Mr. Milosevic required his generals to tell him what generals could be counted on and which could not.”5 Mesic testified that Serbian autonomous regions were illegally established in Croatia through rallies and the usurpation of local authority by Croatian Serbs under the direction of Milan Babic, then a close ally of Milosevic. Conditions for conflict escalated as the JNA distributed weapons to Croatian Serbs. When Mesic set up meetings with local leaders to discuss concerns, Babic, on the orders of Milosevic, forbade them to attend. The Serb takeover of local government was something the Croat authorities could not permit. The first incident pointing toward war occurred in Knin in August 1990, where armed groups of Serbs occupied the police station and stole its weapons. According to Mesic, Croat authorities sent police reinforcements from surrounding areas to quell the rebellion. While local Serbs blocked roads, giving the incident its name (the Log Revolution), the federal army intervened, allegedly to separate warring parties but effectively preventing Croatian authorities from reestablishing control over the territory. The incident established a pattern that Serb forces, supported by the JNA, applied throughout parts of Croatia selected for annexation to an enlarged Serbian state. Thanks to the JNA, Knin remained a Serb stronghold until it was retaken by Croatian forces five years later. Mesic described how Milosevic set out to take power. After illegally changing the Serbian constitution to eliminate the autonomy of Vojvodina and Kosova, he orchestrated mass rallies there and in Montenegro, toppling their leaders and replacing them with his loyalists.6 It also enabled him to place three more allies on the federal presidency, joining Serbia’s representative Borisav Jovic to give Milosevic control over four of the eight presidency members.7 Though he, like other republic presidents, had no legal authority over the federal presidency, he was able to block any action. Mesic remembered calling out when Jovic left the room before votes, “Say hello to Milosevic.” “He did get a bit upset by it,” Mesic added with characteristic humor, “but that’s the way it was.” In March 1991 the situation throughout Yugoslavia heated up. Serbs in the

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Croatian police force took over the police station in Pakrac and declared the district part of Milan Babic’s breakaway Croatian Serb autonomous region. Croatian paramilitary units responded in force and pushed the Serbs out.8 A few days later Serb opponents of Milosevic’s domestic policies took to the Belgrade streets and met a violent police response that left two dead and many others injured. Defense Minister Kadijevic, Milosevic’s ally, sent tanks into Belgrade, shocking Serbia’s citizens. After the tanks withdrew, Serbia’s youth poured into the streets, taking control of Belgrade’s central square for several days. The four Milosevic allies pressed the presidency to declare a state of emergency so that it could order the army to quell civil disturbances throughout Yugoslavia. The other presidency members, including the Bosnian representative (Bogic Bogicevic, a Serb whose assent Milosevic had expected), voted it down. The Milosevic four walked out and Milosevic went on television to declare that Yugoslavia had ceased to function: “In view of this situation, I wish to announce that the Republic of Serbia will not recognise a single decision reached by the SFRY presidency because under existing circumstances, any such decision would be illegitimate.” According to Mesic this violated the constitution and amounted to a nonviolent coup d’état. Milosevic’s speech, introduced into the court record, portended a military coup as well: “I have ordered a mobilisation of reserve forces of the Republic of Serbia, MUP security forces and urgent establishment of additional police forces of the Republic of Serbia. I ask the government of the Republic of Serbia to carry out all preparations for the establishment of additional forces in a size that would guarantee the protection of the interests of the Republic of Serbia and the Serb people.” Milosevic later backed down; two of his supporters on the federal presidency returned and two, of questionable loyalty, were replaced. However, a political coup followed fast on the heels of the first, making it seem like a trial run. The constitutional crisis this provoked shifted public attention from the massive anti-Milosevic demonstrations preceding it. According to Mesic, Milosevic’s machinations prevented him from assuming the rotating office of president of the Yugoslav presidency, leaving the country without a president for two months (from May to July 1991). He took office only after international pressure was exerted. Even then the army virtually ignored him, though as president he was the embodiment of the Supreme Command, the JNA’s boss. Neither the JNA’s chief of staff (Blogoje Adzic) nor the federal minister of defense (Veljko Kadijevic) ever visited Mesic in his office. If he wanted to talk to them, he had to seek them

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out. When he directed them to pull JNA troops back to barracks after they asserted authority over Croatian police who were attempting to reestablish order as a result of Serb provocations, the JNA ignored him. Only a few months after Mesic took his rightful seat on the presidency, Milosevic prevented him from attending presidency meetings by using the JNA to close the Zagreb airport and block roads to Belgrade where presidency meetings were held. Vice President Branko Kostic, Milosevic’s man, convened a presidency meeting on 2 October 1991 with the Supreme Command of the JNA, the institution prohibiting the legal convener from attending. Mesic wrote to all presidency members, “Participation in the unlawful session of the presidency shall be considered adherence to a military putsch.” Nevertheless the presidency went into continuous session, when Kostic orchestrated, through subterfuge, the declaration of an imminent threat of war, as he would admit when he testified in Milosevic’s defense. In this way Milosevic assumed control of a “rump” presidency that acted illegally for lack of a quorum and for the manner in which it had been established.9 By this time war in Croatia was in full swing. The rump presidency, under its mask of legality, was a fiction, but one that Milosevic wanted. Both Slovenia and Croatia had already declared independence from Yugoslavia, though under international pressure they agreed to wait three months before it became effective (from 8 July to 8 October 1991).10 When Slovenia first declared independence in June 1991, the JNA moved to secure the borders of federal Yugoslavia, thus starting a war with Slovenia. It was over in a matter of days. Mesic testified that Milosevic was not interested in Slovenia, which had no Serb population. From the outset his plan was to let Slovenia secede. This was later confirmed by intercepted telephone calls between Milosevic and Radovan Karadzic, as well as General Miloslav Djordjevic of the JNA, who confronted the accused in court: “On June 27, 1990, you discussed how to get rid of Slovenia and half of Croatia. That is the truth.” Nor was Milosevic interested in Croatia, Borisav Jovic told Mesic in early 1991. “We’re not interested in Croatia. We’re not interested in the Serbs in Croatia. What we are interested in is Bosnia-Herzegovina, that is to say the 66 per cent of Bosnia-Herzegovina which was Serb land. It was Serb land and it will remain Serb land.” Hearing this, Mesic proposed a meeting with himself, Jovic, Tudjman, and Milosevic to discuss a resolution, but it never came about. Instead Tudjman and Milosevic met for a tête-à-tête at Tito’s old hunting lodge at Karadjordjevo in the busy month of March 1991. No one else was privy to their talk. Mesic told the court that until that day Tudjman supported a unitary Bosnia governed as one entity. “But after that particular 124  M i l o s e v i c’s R i s e t o P o w e r

meeting, he . . . had a whole about turn in his opinion. And quite obviously Milosevic convinced him that Bosnia could be divided up. And Tudjman told us we would be getting Cazin, Kladusa or, rather, the Banovina borders dating back to 1938, plus Cazin, Kladusa, and Bihac. And he said Milosevic had told him, ‘Franjo, you take Cazin, Kladusa and Bihac. That is what is called the Turkish Croatia. I don’t need that. So you can have that.’ And then . . . this was put into practice” (emphasis added).11 This was startling testimony, but not the first time the court heard about the meeting at Karadjordjevo. It recalled an incident described by Lord Paddy Ashdown. While sitting next to Tudjman at a diplomatic dinner several years after the Karadjordjevo meeting, Ashdown told the court, Tudjman drew a map of Bosnia on a menu, then split it with a line through the republic. Milosevic, he said, proposed to Tudjman that Bosnia be divided between them. Tudjman apparently did not consider the need for secrecy as great as Milosevic did. Ashdown brought the menu to court and it was introduced into evidence. In the coming months of trial, yet more witnesses would corroborate the Karadjordjevo meeting and the discussion on dividing Bosnia.12 Milosevic’s first question on cross-examination disclosed his strategy for dealing with his former adversary: attack and discredit. Without salutation he demanded, “How long a prison sentence did you serve in Gradisce?” Mesic, having been imprisoned in 1975 for political reasons during the “Croatian Spring,” was not reluctant to answer. Milosevic followed by accusing him of working for the state security service and ordering that a Serb named Momo Devrnja be liquidated. “Just about as much influence as I had on Lincoln’s assassination,” Mesic shot back. When Milosevic continued to attack the witness rather than question him on his evidence, Judge May intervened, “What you must understand is that attacking others is not a form of defence, and therefore the relevance is strictly limited.” As well as attacking Mesic’s credibility, Milosevic sought to focus attention on crimes committed by Croats against Serbs and Muslims, though this was in most respects irrelevant. Mesic was quick to admit and condemn Croatian crimes. They were now (under the post-Tudjman regime) being prosecuted, he said.13 Milosevic’s desire to take on Mesic rather than conduct cross-examination as part of a legitimate defense provided Mesic with more than one opportunity to expand on testimony detrimental to the accused. “So it is persons who came from Serbia who manipulated the Serb masses in Serbia? Why?,” Milosevic demanded. “Because Milosevic needed to bring about an insurgency of the Serbs in Croatia so that he would light the initial fuse for setting M i l o s e v i c’s R i s e t o P o w e r   125

Bosnia-Herzegovina on fire, because he needed Bosnia-Herzegovina. That’s what the accused actually did,” Mesic responded. The only concession that Milosevic got from Mesic was obtained as a result of Judge May’s intervention. Asked whether the witness had ever heard Milosevic talk about Greater Serbia, Mesic said he had not. His conclusions were based on what happened, not what Milosevic said. The prosecution was pleased with Mesic’s testimony. He provided a description of the plan by Milosevic that they alleged was the focus of the joint criminal enterprise: taking territory by force and driving out non-Serbs in anticipation of its eventual attachment to Serbia. Even more important, Mesic made the vital connection between Milosevic and the war in Croatia by explaining how Milosevic gained control over the JNA and used it to take control of Croatian territory. Finally, Mesic exposed Milosevic’s machinations behind the destruction of the federal presidency, leaving the rump presidency that answered to him so as to fool the outside world and the Serbian people.

In contrast to the volatile exchanges between Milosevic and Mesic, the accused’s confrontation with Milan Kucan, president of Slovenia, was mild. Milosevic accused Slovenia of responsibility for the breakup of Yugoslavia (as he had accused Mesic) and for starting the ten-day war with the JNA. Kucan vehemently denied this.14 His only concession to Milosevic was agreeing that he had never said Milosevic controlled the JNA. Kucan corroborated important elements of Mesic’s testimony. He attested to the accuracy of Milosevic’s speech at the Communist Party Central Committee in 1989, at which the accused declared, “Things that can’t be changed institutionally and must be changed because people want it, will be changed uninstitutionally. . . . [I]f Yugoslavia were to be conceived of in a community in which Serbia was divided into three parts, . . . Serbia would be against Yugoslavia.” Kucan interpreted this and Milosevic’s subsequent speech at Kosovo Polje as a threat to the institutional order. Milosevic repeated the threat in a speech to the Serbian Parliament in June 1990 in support of a new Serbian constitution. “The message was,” Kucan testified, “should Yugoslavia fall apart, Serbia will never agree to a solution where Serbs live outside the borders [of a Serbian state]. He also implied that borders might be redrawn by use of force.” Throughout Milosevic’s maneuvering Slovenia attempted to find a political solution to the crisis, which followed the collapse of the Soviet Union and 126  M i l o s e v i c’s R i s e t o P o w e r

the fall of the Berlin Wall. Yugoslavia needed redefinition, just as Czechoslovakia had. However, for reasons that will continue to be analyzed for years to come, Czechoslovakia divided peacefully, while Yugoslavia erupted into a ten-year war. According to Kucan, Slovenia’s efforts met a stone wall. Solvenia could get none of their proposals passed in federal or party bodies. When they attempted to protect themselves by amending the Slovenian constitution to clarify Slovenia’s right to self-determination (including secession), the central committee of the League of Communists threatened to use “all other means at their disposal” to stop them if they went ahead. “We knew it meant a state of emergency and possible use of the army to secure order in Slovenia.” Four months later, at the 14th Congress of the League of Communists in January 1990, the Slovene delegation walked out when all its proposals were defeated by delegates following Milosevic’s lead. Kucan testified that Slovenia’s walkout marked the effective end of Yugoslavia as a state. The JNA partially disarmed the Slovenian Territorial Defense (TO) within a few months (May 1990), and more completely disarmed the TOs of Croatia and Bosnia. This was done without notice to the republics, who had paid for the weapons and controlled them as part of the All People’s Defense system. When Kucan protested to General Hocevar (appointed to head the Slovene TO by the federal presidency without consulting Slovenia), Hocevar responded, “I’ve had instructions that neither you nor any leadership was to be informed of this. I’m not clear whose order to follow, so I’ll follow this.” The JNA later distributed the weapons to Serb forces fighting in Croatia and Bosnia. The JNA war with Slovenia in June 1991 lasted ten days. About fifty people died, mostly JNA soldiers. It was clear from this, as well as intercepted telephone calls, that Milosevic and Karadzic agreed with Slovenia’s secession— indeed, had planned for it all along. Unlike Croatia and Bosnia, Slovenia lacked a substantial Serb population. Milosevic Consolidates Power

Yugoslavia’s last prime minister, Ante Markovic, broke a twelve-year silence when he testified for the prosecution. As he entered the courtroom a hush fell over the expectant Balkan press corps. He was a highly respected figure among many Serbs, Croats, and Bosniaks, those who yearned for their former multiethnic state. They saw him, not Milosevic, as the one who tried to hold the old Yugoslavia together. Markovic told the court that his program of democratic and economic M i l o s e v i c’s R i s e t o P o w e r   127

reforms, which saved the country from hyperinflation and provided the best hope for a peaceful transition, had been undermined, obstructed, and destroyed by Serbia’s former president, who sat in the dock to his left.15 With an extensive background in business, Markovic initiated democratization and economic reform to stabilize Yugoslavia, which was in economic and social turmoil, experiencing unprecedented inflation of more than 1,000 percent a year. Milosevic took a number of actions to undermine the reform effort. According to the witness: “The Programme was an obstacle to Milosevic in his surge for absolute power in Yugoslavia. Introducing a multiparty system and elections in Yugoslavia would not allow Milosevic to stay in power.” Because of the program’s success, Markovic’s popularity was high, also a threat to Milosevic. In an effort to defeat Markovic’s reform program, Milosevic in 1989 effected the illegal transfer of 2.5 billion Deutschmarks (US $1.25 billion), set aside for all six republics for the next year, from the National Bank of Yugoslavia to the National Bank of Serbia. Markovic called this the “robbery of the century.” It showed, he told the court, that Milosevic, who continually claimed he was fighting for Yugoslavia’s interests, was really fighting for his own. On discovering the theft Markovic confronted Milosevic, who denied knowing anything about it. “I was very sharp with him,” Markovic testified. “I said not a single detail in Serbia happens without his knowledge let alone daylight robbery.” Markovic called a special session of the government and ordered the Yugoslav National Bank to take vigorous steps to secure the money’s return. The bank recovered only part of the stolen funds. Over the period of Markovic’s tenure Milosevic secured control of the federal budget by controlling a majority in the federal assembly after the departure of Croatia and Slovenia. As a result, 81 percent of the proposed 1992 budget was allocated for the JNA. For the prime minister the writing was on the wall. His program could not succeed. In fact the federal government was no longer functional. For the first time he found himself “totally alone in government.” He resigned on 20 December 1991. The prime minister’s life was also under threat. He told the judges about narrowly escaping death while visiting Tudjman in his palace in Zagreb in October 1991. After lunch with Tudjman and Mesic, a bomb exploded in the dining room where the three had been moments before, dropped by a fast, high-altitude JNA airplane. Markovic believed that he had been the target. In his last weeks as prime minister in Belgrade he slept with a pistol under his pillow. 128  M i l o s e v i c’s R i s e t o P o w e r

At least by July 1991 Markovic and others, including President Izetbegovic of Bosnia, knew that Serbia was arming the Bosnian Serbs. Izetbegovic told Markovic of an intercepted telephone conversation between Milosevic and Radovan Karadzic, leader of the Bosnian Serbs, which the Macedonian foreign minister had played for him. Milosevic and Karadzic discussed preparations for war in Bosnia, including deployment of the army, procuring weapons, and arming men. Though the foreign minister destroyed the tape, making it difficult for Markovic to convince the federal government of what he had heard, the prosecutor played another copy in court. Milosevic was chillingly heard giving Karadzic directions about war preparations. Markovic described Milosevic as a man whose words differed from his thinking and actions, as was evident in their last meeting. When the prime minister raised concern over the imminent threat of war, Milosevic responded, “Which war?” “That was the way he always reacted,” Markovic wrote in his statement. “We both knew that a huge JNA concentration existed in Bosnia at that time.” To Nice’s question whether Milosevic was a nationalist, the witness laughed: “No, No. Slobodan Milosevic used everything he could to insure power for himself and power over people. If that was nationalism, he used that.” Milosevic produced Markovic’s daily appointment calendar from the latter half of 1991. It startled both the witness and the prosecution, which had been seeking documents from the Serbian and former Yugoslav archives for years. Markovic testified that he had asked the Federal Executive Council for archived material of which a whole library existed, but had not been able “to get anything from them.” Nor had the prosecution. But Milosevic, despite being voted out of office and arrested by the government, had access, evidence that his network was still embedded, active, and able to exercise substantial power within official Belgrade. Markovic’s calendar, Milosevic pointed out, did not record any meeting with him in December 1991. Markovic responded that he had told his foreign minister, Budimir Loncar, and the Italian minister of foreign affairs, Gianni de Michelis, about the meeting after it occurred, providing corroboration. This meeting with Milosevic aside, Borisav Jovic’s published diary supported a good deal of Markovic’s testimony. President of the federal presidency and Milosevic’s closest ally at the time, he was an unindicted member of the joint criminal enterprise. As a contemporaneous account of a highly placed insider, his diary was an invaluable source of information. Borisav Jovic came to the tribunal under subpoena. The mix of his testimony showed why. M i l o s e v i c’s R i s e t o P o w e r   129

Jovic was Serbia’s representative to the federal presidency until it was dissolved in 1992. At different times he served as president and vice president of Milosevic’s SPS. In 1995 Jovic published his contemporaneous diary from his years close to the seat of power. Titled The Last Days of the SFRY: A Diary, it was an insider’s exposé of the joint criminal enterprise and Milosevic’s power over it. Immediately after it was published Milosevic orchestrated Jovic’s dismissal as vice president of the SPS.16 Nice asked the witness if he still held the opinion expressed in his second book, that the accused was the key figure in the Serbian tragedy. Jovic replied, “Of course, for more than a decade Milosevic was the main political figure in Serbia. He held absolute authority with the people and the party. He had the possibility for a decisive role on all decisions. He was the main actor of everything that came to pass during that time.” Milosevic’s former ally, who met with him more than a hundred times, described Milosevic in his book as an autocratic ruler surrounded by people who obeyed him unquestioningly, but he waffled in court, “These are very unpleasant questions for me here before this Court. . . . [A] personal opinion of mine cannot and should not serve as the basis for anyone’s judgement.” His cautionary statement reflected an effort to soften his accusations now that he was confronting Milosevic in an international trial considered by many in Serbia to be an attack on them and their state. However, Jovic also affirmed everything he had written. The accused, he wrote, held dictatorial power:17 “Milosevic had the final word in all important and even not so important decisions. Especially, he personally decided on the election of people for official positions. He often made big decisions without consulting others and when he did consult them, he had the last word. He was interested in the realization of the set goals as well as remaining in power for as long as possible. He easily rejected people after using them to reach his goals. Milosevic was not a person who used to show much compassion to others. It was not his style.”18 Milosevic’s power to appoint and dismiss at will, together with his hold over the SPS, allowed him to control Serbia’s legislature, judiciary, executive, police, and media for most of a decade. His power extended to the Yugoslav army through party appointments even before the purge of the generals gave him ultimate authority. Power was what Milosevic was all about, and Jovic was not reticent to say so. “If viewed in the context of achieving program objectives or sacrificing some to retain power, the advantage would be given to retaining power rather than achieving program objectives.” The Krajina Serbs, driven out of Croatia in 1995 while Milosevic passively watched from a mountain retreat, would certainly have agreed. 130  M i l o s e v i c’s R i s e t o P o w e r

Milosevic also had absolute control over the SPS, whether he held any official position or not. In his statement Jovic declared, “Milosevic had absolutely the highest authority in our Party from the moment it was founded onwards regardless of whether he was president or not. . . . While, as it turned out, he could dismiss me whenever he wanted to, I could never dismiss him.”19 Milosevic dismissed Jovic immediately after his Diary was published, refusing to brook public criticism from his inner circle. In the book Milosevic was called an autocrat at a time when he sought to portray himself as a statesman, essential to securing peace in the region. For that Jovic had to be punished. He lost not only his party position but all political and social connections with the regime. Jovic was even expunged from a video recording the declaration of Yugoslavia’s new constitution. “I was replaced without explanation, vote, right to appeal or written decision,” he told the court. Jovic was not the only one to fall from Milosevic’s favor and disappear from the halls of power. Others he identified included Milan Babic (replaced as president of the Serbian Krajina), Milan Panic (replaced as president of the federal government), Branko Kostic (replaced as candidate for president of the FRY), Dobrica Cosic (replaced as FRY president), and General Veljko Kadijevic (replaced as federal defense minister). In his statement Jovic also described the purge of JNA generals: “In the end of 1991, we [Milosevic and Jovic] decided to retire a number of generals and admirals to reform the Army according to the political vision we had of the new Yugoslavia.”20 It was at this point that Milosevic gained unfettered control over the JNA. With consent of the military leadership he implemented his plan. As an important part of his autocratic power, Milosevic controlled the major media, including state radio and television and the major state-run newspaper, Politika. Jovic wrote that Milosevic was able to select media editors and executive staff. When Milosevic argued that there were hundreds of independent newspapers in Serbia, Jovic pointed out that few people could afford to buy them. The vast majority relied for news on the government television station, RTV-1. Milosevic’s dominance over policy was apparent in his handling of the Carrington plan for a loose confederal state with no change of internal borders. Milosevic opposed the plan primarily because it granted autonomy to minorities within a state—a good deal for Serbs in Croatia, but not what he wanted for Albanians in Kosova. He proposed instead that republics and nations (ethnic groups) who wanted to leave Yugoslavia could do so, while those who wanted to remain could do so as well. But Milosevic needed at least two republics to maintain the fiction of a still-existing Yugoslavia. Given other M i l o s e v i c’s R i s e t o P o w e r   131

Drav

AUSTRIA

a

HUNGARY Sava

Ljubljana

Virovitica

Zagreb

N

VOJVODINA Beli Manastir Erdut Novi Sad SLAVONIA Vukovar Da nube Vinkovci Lovas

BARANJA

Osijek Dalj

SLOVENIA Pakrac

ITALY

Slavonski Brod

Karlovac Rijeka REPUBLIC OF SERBIAN KRAJINA

Banja Luka Bihac

Prozor

Pula

SRIJEM

Brcko Tuzla

SERBIA

Karlobag Gospic

BOSNIA-HERZEGOVINA Zadar

D

A

Benkovac

Sarajevo

Knin L M

A

T

I

A

Split ADRIATIC SEA 0 0

Mostar

MONTENEGRO

Ploce

10 20 30 40 50 mi 20

40

60

80 km

Dubrovnik

Podgorica

Prevlaka

Croatia, 1991. Shaded areas are Serb-controlled.

republics’ fears of Serbian dominance in any rump Yugoslavia, Milosevic was counting on Montenegro to “remain part of ” Yugoslavia with ­Serbia.21 To Jovic’s and Milosevic’s shock, Montenegro’s representative, Branko Kostic, said that Montenegro was going to support the Carrington plan. When Milosevic tried to telephone Momir Bulatovic (then president of Montenegro), Bulatovic would not take his calls. Eventually reached, Bulatovic stood firm. Milosevic and Jovic considered replacing him, as Jovic’s Diary memorializes: “We believe that it would be easier for us to overthrow them than to develop a new and worthy political platform for further, separate action.”22 In the end Bulatovic caved in to threats and the Carrington plan was abandoned. It was the last time Bulatovic publicly opposed Milosevic. Montenegro’s foreign minister expounded Jovic’s testimony, as will be discussed shortly. Jovic acknowledged sharing Milosevic’s concern in 1991 that the JNA would be considered an occupying army once Bosnia’s independence was recognized. The international community would demand its withdrawal from Bosnia, effectively leaving the Serb population “unprotected” against the developing Croatian and Muslim “paramilitaries.” Noting that the JNA was then largely a Serbian and Montenegrin force with the withdrawal of Croats and Muslims, Milosevic proposed that all JNA members be dispersed to their home republics under the guise of dissolving the JNA. While Serbs 132  M i l o s e v i c’s R i s e t o P o w e r

and Montenegrins would leave Bosnia, Bosnian Serbs serving in the JNA outside Bosnia would return home to take over the remnants of the JNA, eventually constituting the army of the breakaway Republika Srpska (VRS).23 This maneuver provided a way to transfer JNA assets to the Bosnian Serbs, leaving Muslims in Bosnia defenseless. Kadijevic, the federal defense minister, initially opposed this because it meant the JNA’s end. However, within a month he did what Milosevic wanted. Milosevic relied on this artifice to support his contention that the Bosnian war was a civil war in which Serbia and the FRY were not involved.24 The importance of Jovic’s testimony to the prosecutors was evident in their willingness to have Milosevic cross-examine him for seven hours, though the court had limited the prosecution’s examination to two. On cross-examination the accused could ask leading questions, essentially putting words in the witness’s mouth. In effect he was testifying, though not under oath. Jovic obligingly agreed with most of Milosevic’s propositions. But on the issue of Milosevic’s unrestrained power, including how easily he dispensed with Jovic, he stood firm. Jovic agreed with Milosevic that he and all top leaders saw Croatia’s violation of Serb rights as causing the conflict. In 1990, they maintained, Croatia disarmed the Serbian domestic police. Jovic asserted that the JNA collected weapons throughout Croatia and put them under army control because the Croats and Slovenes were arming themselves. Serb citizens only armed after Croats did, and then for self-defense. Jovic denied that Serbia was interested in expanding its territory by attaching Serb lands in Croatia or Bosnia to itself. Its aim, he said, was to insure that Serbs were treated equally in states where they were a minority. Faced with this testimony, Nice confronted Jovic with Milosevic’s statement of January 1991, with which he had agreed: “The Serbs’ starting point was that it has its own unified federal state today [Yugoslavia] and that it wants to decide as a nation on its own future based on that position. The Serb nation [ethnic Serbs throughout Yugoslavia] wants to live in one state with equal civil rights, with one internationally recognised border, one military, currency, and market. Anyone who wants to live with them on equal footing is welcome to do so. For us, the state must be unitary or federal. A confederation is not a state and as a nation we refuse to consider that.” “How was the state of the nation of Serbs to have this self-determination other than by joining up with Serbs from other republics?,” Nice asked. Serbs living in Croatia on land contiguous to Serbia could either go with Croatia (if it seceded) or remain in Yugoslavia (with Serbs in Serbia), according to M i l o s e v i c’s R i s e t o P o w e r   133

Jovic. His construction reflected the Serb position that Yugoslavia consisted of nationalities (ethnic groups), not republics, four of which included a large number of Serbs.25 Because Croatia was a state of Croatians and Serbs, both nationalities had the right to self-determination, Jovic claimed. Jovic agreed with Milosevic that the Serbs always sought peace and had accepted six peace plans (neither mentioned the rejected Carrington plan). That Serbia supported the Vance plan, providing for a ceasefire in Croatia to be monitored by UN troops, showed that it was not interested in territory, Milosevic argued, not mentioning that the plan retained Serbian gains on the battlefield giving them control of 27 percent of Croatia. As Milosevic went through the litany of his statesmanlike actions, Jovic agreed that he had always opposed ethnic cleansing; that he publicly called for the bombing of Sarajevo to stop; that he pressed for peace because he did not want any more killing and needed sanctions against Serbia lifted; and that he gave refuge to 840 Bosnian soldiers who crossed the River Drina in July 1995.26 Jovic also helped Milosevic by testifying that he never wanted a Serbian army, as other prosecution witnesses claimed.27 “It was the opposition, primarily Vuk Draskovic, who did.” Milosevic’s former ally also agreed that the republic presidents had no control over the JNA. Milosevic was not consulted regarding the retirement of generals, Jovic now said, in direct contradiction of his written statement.28 Milosevic began a seductive colloquy with Jovic, designed to get him to renounce his testimony about his dictatorial control. The witness stubbornly resisted. When asked whether he really thought the accused was an autocrat, Jovic said he did. “But didn’t I respect others’ opinions?,” Milosevic asked. “You respected other people’s opinions if they did not clash with yours as a rule,” Jovic responded. There were those hundreds of meetings and even more conversations that they had, the accused reminded him. Jovic shot back that they were talking about institutional marginalization. “As for me, I consider myself to have been privileged. I said that I always had access to you, I was always able to say what I thought, I was always able to disagree and that I suffered no consequences for a long period of time, but I could never decide differently from what you said ” (emphasis added). Milosevic also had the decisive word in the SPS and the assemblies, Jovic testified. The accused tried to preserve his image: Milosevic: I’m not denying at all that I was the leading figure in Serbia, that I enjoyed the greatest authority, and that from the position of my post and political authority I made decisions. But what I am denying is that I 134  M i l o s e v i c’s R i s e t o P o w e r

did not respect other people’s views, that I didn’t take them into account, that I didn’t have an ear for them. That is something I do deny, and that is not true. Jovic: No, no. We have to make things clear between us. Will you please explain to me, tell me of a single meeting of the Main Board of the party from the 3rd Congress onwards at which there was a debate, a discussion, a confrontation of different views about something that was proposed? Just give me one. There wasn’t a single one. [emphasis added] This was another instance where Milosevic’s ego got the best of him, as he admitted his extensive power in order to argue that he was a fair leader who valued the opinions of those around him. When Milosevic tried to convince Jovic that the SPS was democratic, Jovic responded, “Now we come to the main point: Everything that you proposed had no objections. . . . I was replaced in my absence. I was not even informed that my question would be on the agenda. But that is not important. This only illustrates the method of work. The party is the central place where everything was decided; who would be a deputy, what the positions those deputies would take in the assembly, et cetera, et cetera; how the government would work. So it was very important.” The prosecution had already established that Milosevic controlled the party. The amicus Branislav Tapuskovic raised the issue of “the Six,” an informal group consisting of Montenegro’s president, its representative on the federal presidency, the federal minister of defense, and the JNA chief of staff, as well as Jovic and Milosevic. The amicus asserted that this was a group that made no decisions, and he asked for Jovic’s agreement with his characterization. This did not seem to have been the case. Jovic responded, “This was a consultative group which, after this discussion, had the ability in a way, the moral obligation, to carry out in a synchronised manner what we had agreed upon within the authorities where they worked.” In other words, they discussed issues, reached agreement, and implemented that agreement in their spheres of power. The Group of Six were all alleged members of the joint criminal enterprise in the indictment. They began meeting in August 1991, separate from the federal presidency, according to Jovic and Branko Kostic, one of the two Montenegrin members. The clandestine group, which excluded Bosnians and Croatians but included federal military leaders, was solely engaged in advancing the interests of the Serbs. It operated at a time when the JNA continued the fiction that it was a federal army for all Yugoslavia, and Milosevic insisted that he wanted a multiethnic Yugoslavia to continue as the best M i l o s e v i c’s R i s e t o P o w e r   135

solution for Serbs. The in-court revelation of the Group of Six disclosed that a conspiracy involving Milosevic was operating. Despite Jovic’s agreement with Milosevic’s view of the conflict, when he stepped down from the witness stand he left an indelible picture of the accused as the most powerful man in Yugoslavia during its demise and the wars that followed. He controlled Serbia but he also significantly influenced, then consolidated his power over, the federal presidency and the army. Court Defers to Diplomacy

At the beginning of March 2003, in response to the prosecution’s plea for judicial assistance in securing documents from Serbia, the trial chamber deferred the matter, giving the government two more months to respond.29 The prosecution had been trying to obtain some documents since April 2001, first turning to the court for assistance in December 2002 after Serbia had failed to respond to a large number of requests, seriously obstructing the progress of the trial. Nice characterized the government’s response as the lowest level of cooperation possible: “[If the prosecution] can identify a document with sufficient clarity that its existence cannot be denied” and is persistent in making the request, the prosecution might get it. Persistence was indeed required, as the court would make clear later in denying the prosecution’s attempt to introduce evidence it had received after the close of its case.30 The prosecution had provided the court with a list of 162 priority documents it felt were critical to fully present its case. Of particular importance, Nice said, were ninety documents that it wanted to introduce through a protected witness scheduled to testify within two weeks (Zoran Lilic, president of the FRY from 1993 to 1997).31 The documents were expected to provide evidence of the involvement of Serbia and FRY political, military, and police organs in the conflicts in Kosova, Croatia, and Bosnia. For over a year the prosecution had sought access to the FRY defense plan and military orders and records of the Supreme Defense Council, the Supreme Command, the MUP, the Serbian State Security Service, the Joint Command, and the Serbian and FRY presidencies, among others. Military, police, and governmental documents were critical to establishing a connection from Milosevic to the plan for an enlarged Serbia and the crimes committed in carrying it out. “These documents demonstrate the inner-workings of a coordinated political, military, police system,” the prosecution application stated. Serbia argued that the ICTY statute did not give the prosecution a right to survey governmental archives. Even if it did, Serbia claimed, the prose-

136  M i l o s e v i c’s R i s e t o P o w e r

cution’s application did not meet the requirements of ICTY rules (identifying documents and their relevance and explaining steps taken to secure the state’s assistance). Government representatives were not specific about which requirement the prosecution had failed to meet.32 Nice expressed astonishment at the government’s sudden claim that the prosecution had no right of access to archives, since it had never made the claim before as a reason to deny a prosecution request. Indeed, the minister of justice had allowed just this practice in the past. He also pointed out that Bosnia, the Republika Srpska (RS), and Croatia had permitted the prosecution to have access to their archives. Allowing the prosecution to survey archival material for relevant documents reduced a state’s burden to do so, the prosecution argued. The issue was whether the prosecution could obtain access to material that it could identify only in a general way—such as “all orders issued by Colonel General Nebojsa Pavkovic . . . concerning the engagement or use of VJ and Serbian police forces in combat operations during the 1999 conflict in Kosovo.” Or must it describe each document with a specificity possible only by knowing that a particular document existed? There were obvious problems with the latter approach. Although Vladimir Djeric, the government’s representative, stated his certainty that in the near future Serbia could provide information with respect to the ninety documents, the court did not mandate the government to do so. In an oral order, the court ruled that “a final determination would be premature,” and that “it would be more productive to adjourn the proceeding [hearing on the prosecution’s motion] to allow the government to respond to the priority list of the prosecution within two months.” It further directed the government “to comply with the prosecution request as far and as soon as possible or to indicate the ground of objections where taken to any request.” At the end of two months the trial chamber would consider whether further action or an additional hearing was necessary. Under this directive the government could withhold documents near to the deadline for ending the prosecution’s case. This gave the prosecution little alternative, short of an interlocutory appeal, but to rely on Serbia’s good graces to provide needed information soon enough to be useful in its case, i.e. well in advance of the court’s two-month deadline.33 It placed enormous pressure on the prosecution, since the documents had to be introduced through an appropriate witness, and the prosecution had to provide the accused with the names of witnesses ten days before their testimony. If

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Serbia did not provide the documents in time, the prosecution could find it difficult or impossible to introduce them in evidence, which is precisely what happened. Here the court deferred to state authority, ranking diplomatic niceties above prosecutorial or judicial necessities. The prosecution was right to ask why Serbia should need more protection for its documents than other states and entities in the former Yugoslavia. Given the time limits that the court imposed on the prosecution’s case, it should at the least have issued an order which more clearly specified Serbia’s responsibilities by a date certain. Reliance on the good offices of a state whose cooperation with the tribunal was an ongoing issue at the UN Security Council, without some findings to support it, was questionable. In frustration, Nice addressed the court: “Provision of documents is an extremely important matter. As against the authorities, we’ve made it quite clear that we believe we are being obstructed and have been consistently obstructed.”34 The full extent of Belgrade’s intransigence was not discovered until Milosevic called his top military brass to the stand, long after the prosecution had rested its case. Even then the court refused to see what amounted to a coordinated effort to manipulate the tribunal, perpetrated by high present and former military and civilian authorities. By the end of February 2004 the prosecution rested its case, applying at the same time to admit additional minutes of Serbian Assembly meetings.35 The court denied the prosecution request because the documents “were tendered too late in the proceedings [by the prosecution]” and “the accused would not have time to consider and prepare argument on them.” The court did not mention when Serbia provided the documents to the prosecution. Milosevic’s Private Army

Returning to the substance of its case, the prosecution took up its efforts to show the judges how Milosevic had acquired and wielded power, calling the police expert Dr. Budimir Babovic, formerly with Interpol. Dr. Babovic testified that at the same time Milosevic was consolidating control over the JNA, he set about creating his own private army by militarizing the Serbian police and appointing loyalists to its top echelon.36 Milosevic had legal control over the Serbian police from 1989 through his ouster from office in 2000, he testified.37 By 1997 the Serbian police numbered 150,000. Zoran Lilic, former FRY president, substantiated Babovic’s testimony, as did General Miloslav Djordjevic of the JNA. The police expert also found, contrary to law, that the Serbian MUP oper138  M i l o s e v i c’s R i s e t o P o w e r

ated outside Serbia at least as early as 1989. “The Serbian police’s engagement outside Serbia most frequently came in the form of para-statal formations [paramilitary and para-police].” An important reason for this, Babovic said, was the widespread draft resistance among Serbian young men. He gave another reason: “For Serbia, acting through paramilitary formations was a solution for ‘war without war,’ and the persistently repeated claim that Serbia was not at war.”38 According to Babovic, in mid-1990 the SDB sent two high-level operatives, Radovan Stojicic (“Badza”) and Franko Simatovic (“Frenki”), “to infiltrate Knin under false names and begin preparations for an armed insurrection by the Serbs.” The establishment of several paramilitary organizations followed, including Arkan’s Volunteer Guard (“Tigers”), Vuk Draskovic’s Serbian Guard, and Mirko Jovic’s White Eagles. His testimony was corroborated by members of these paramilitary units: “Training, outfitting and arming took place in Bubanj Potok, near Belgrade. The whole operation was supported by the then Serbian Ministry of Defence. The minister, Tomislav Simovic, later said that he had been convinced that a new Serbian army was actually being set up.”39 In fact Simovic’s chef de cabinet, Dobrila Gajic-Glisic, testified that in September 1991 Milosevic ordered her boss to draft a law establishing a Serbian army—quickly and in secret. When the Army chief of staff Zivota Panic learned of this, the effort was stopped and Simovic was ousted as defense minister.40 The SDB soon abandoned its efforts to make a fighting force out of Territorial Defense (TO) members and paramilitaries and instead established its own unit, the Red Berets, on 4 May 1991. Initially called the Unit for AntiTerrorist Operations, later the Special Operations Unit (JSO), it began with fifty-seven members and grew to nearly six hundred. The nucleus, according to the SDB special operations chief Franko Simatovic, recorded on a videotape played in court, continued to be members of the SDB. Simatovic spoke about many of the places the Red Berets had fought in both Croatia and Bosnia. The JNA general Miloslav Djordjevic, who headed a coordinating office between the JNA and the Serbian MUP, testified that Milosevic had made the MUP his “Praetorian Guard,” better funded than the JNA. He called Milosevic’s devaluation of the army “shameful.” As Serbian president at the time, Milosevic was at the top of the Serbian MUP command structure. It was highly unlikely the SDB was operating on its own or under the sole direction of the interior minister without Milosevic’s knowledge. According to Babovic, Milosevic bypassed the interior minister, establishing direct contact with the SDB chief Jovica Stanisic, who reported M i l o s e v i c’s R i s e t o P o w e r   139

directly to him. By 1991, when fighting began in Croatia, Milosevic had undisputed control of the Serbian police and its state security service. On the video played in court (recording the sixth anniversary celebration in 1997 of the unit’s founding), Simatovic, the man who directed the Red Berets for the MUP, distinctly gives the founding date as May 1991. The evidence directly linked Milosevic to the war in Croatia and Bosnia and made him responsible for the actions of the Serbian police who were his subordinates. Serbia’s “troops” under Milosevic’s control were involved up to their eyebrows in Croatia.41 Babovic’s report concluded: —[T]he greatest responsibility for the most important decisions regarding the operations and conduct of the police lies with Milosevic. —[T]he Serbian MUP operated outside Serbia, either directly, or through its own para-state formation. —[T]he para-state formation established by the [MUP of Serbia] committed crimes in the areas engulfed by war. —Milosevic knew of the operations of the para-state formation and other MUP forces (“I read those reports of yours,” he said to the JSO leader on video) and he approved of them (“thank you,” he said to Simatovic), but that there is no proof that he asked for unlawful activities to be corrected. —[It] is impossible not to raise the issue of Slobodan Milosevic’s command responsibility. Babovic assured the court that he was not attempting to usurp its role of deciding Milosevic’s guilt as a commander responsible for the crimes of his subordinates. It was merely the way a policeman would look at the issue based on the hierarchy of command. Nevertheless, the report all but concluded that Milosevic did have command responsibility. Two judges questioned Babovic’s credentials for making what they considered legal analysis. That is what lawyers train for, and Babovic was not a lawyer. Rather modestly, Babovic, who made his report at the prosecution’s invitation, explained that he had a doctorate in political science, had studied law, and had led the Yugoslav office of Interpol for eight years. He had also published several works on the subject of police in society, including a book, Human Rights and the Police in Yugoslavia, in 1999. When Babovic explained that the Serbian constitutional court had recently delivered an opinion similar to his analysis, Judge Robinson chastised him:

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Babovic (answering the prosecutor’s question): The decision [of the Serbian constitutional court] is not identical with my analysis, but basically it doesn’t differ in the least.42 Judge Robinson: You say the constitutional court didn’t accept the approach you had. Who’s view should this Court accept? I would rather accept that of the constitutional court. You are a social scientist. This is a legal issue. The constitutional court agreed with your position in one respect and in another it did not. In response, Babovic denied suggesting that the trial chamber should accept his judgment over that of the constitutional court. He reiterated what Judge Robinson seemed not to have heard the first time: the constitutional court “did accept what was essential” in his analysis. Milosevic too was quick to focus a substantial part of his cross-examination on Babovic’s credentials, disparagingly referring to him as a “French teacher” because his undergraduate degree was in French language and literature. Babovic, for his part, was self-effacing as well as resentful of the rude treatment he was receiving. When Milosevic demanded if he considered himself an expert, he replied, “Others do. I would be immodest to say I do.” The badgering and humiliation had an effect, however, as Babovic answered Milosevic’s questions with curt responses such as “I said what I had to say.” As a result, he appeared to know less than he did. The court had concerns about Dr. Babovic and later Dr. Ivan Kristan, the prosecution’s constitutional law expert, because the areas of expertise of these witnesses were law-related. While none of the judges was an expert in Yugoslav or Serbian constitutional law, their own legal expertise perhaps caused them to impose a higher standard for other law-related experts. They jealously guarded their territory from suspected interlopers. The result, at least with Dr. Kristan, was that the judges denied themselves the benefit of a look behind Yugoslavia’s and Serbia’s legal formalism to view how it was being used and manipulated by those in power, in particular Slobodan Milosevic.43 While attention was focused on Babovic’s credentials, a critical paragraph in his report went unnoticed, except by the sharp eyes of a journalist who was also a survivor of Srebrenica.44 It will be discussed with other documents related to Srebrenica.

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Milosevic Cannot Resist Cruelty

Montenegro’s former foreign minister, Nikola Samardzic, told the court that Yugoslavs did not want war, but Milosevic forced it on them. Staterun media in Serbia and Montenegro provoked fear and patriotic bellicosity with propaganda claiming that the fascist Ustasha had once again risen to power in Croatia, as they had in the Second World War. By the fall of 1991 the rumor spread that thirty thousand Ustashas were positioned on the border, preparing to attack the Bay of Kotor in Montenegro. Montenegro’s president, Momir Bulatovic, signed a mobilization order on 2 October to send Montenegrin troops to join the JNA. When the troops crossed the border into Croatia, they found only civilian villagers and a handful of Croatian soldiers. Regardless, they pressed the attack in a rampage up the picturesque Dalmatian coast to Dubrovnik. In village after village, the army—likened to barbarian hordes—drove out residents, then looted and destroyed their homes. A caravan of trucks carrying TVs, appliances, and other valuables crossed the border back into Montenegro. Croatian men were rounded up and imprisoned in camps, where they were beaten and abused. When the army reached the beautiful walled city of Dubrovnik, a UNESCO heritage site that evokes strong feelings among former Yugoslavs and non-Yugoslavs alike, it settled in for a siege. Joined by the air force and navy, for three months it shelled the city, its old town, and its harbors, destroying electricity and water supplies and killing hundreds of people. When Samardzic discovered that it was JNA forces threatening Dubrovnik rather than the other way round, he prevailed upon Bulatovic and the Montenegrin Assembly to initiate actions to open negotiations with Croatia. In its resolution on 8 October authorizing negotiations, the assembly also recognized Croatia’s independence, Samardzic insisted.45 Despite ongoing hostilities and Montenegro’s clear aggression, the response from Croatia was positive. But as Samardzic prepared to head to Zagreb for talks on 16 October, he was stopped, most likely by Belgrade. The official reason was the need for his presence at an international meeting on 18 October to discuss the Carrington plan. In the meantime the Serbian government wrote a threatening letter to the Croatian authorities, accusing them of installing mercenaries in Dubrovnik to launch an armed rebellion against the Bay of Kotor. The letter informed Croatia that the Serbian government was “of the firm conviction that the

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JNA will protect this historic town.” Samardzic called the letter “as cynical as anything done in the times of Goebbels.” At the same time Milosevic was creating a pretext for war, he was scuttling international peace efforts. The Carrington plan, presented to the parties on 17 October, was one of a number of international proposals for a negotiated settlement for Yugoslavia. It consisted of three major points: the republics of Yugoslavia would become independent states and secure UN membership; they could form an association of independent states or associations among themselves; and minority rights would be respected. Herein lay a dilemma for Milosevic. While the plan provided substantial autonomy for the Serb minority in Croatia, it applied to the Albanians in Kosova as well.46 This Milosevic could never accept. Representatives of all former Yugoslav republics were summoned to a meeting at The Hague to vote on whether to accept or reject the Carrington plan. The plan essentially provided for what the Slovenians and Croatians had advocated earlier, while Milosevic proposed a centralized state (where, the other republics feared, Serbia would dominate). By this time Slovenia and Croatia had declared independence, the JNA had waged war followed by a peace settlement in Slovenia, and a rump presidency composed of Milosevic loyalists ran the phantom state of Yugoslavia, as Slovenia, Croatia, Macedonia, and Bosnia no longer sent representatives to presidency meetings. Yugoslavia was a state in name only. The assembly in Montenegro met in all-night session before voting on the Carrington plan. Samardzic made an impassioned speech: “If we don’t accept the Carrington Plan, we are leading the Serbian people in Croatia into the greatest possible abyss.” Ultra-rightists stormed the assembly, called Samardzic a traitor, and nearly beat him up. According to Samardzic, President Bulatovic felt that the Carrington plan was the only way out of the crisis, but remained uncertain how he would vote because he was afraid of what Milosevic would do. The fear was not unfounded. At The Hague meeting Milosevic opposed the Carrington plan. While he admitted that Croatia had the right to set up an independent state, he maintained that the Croatian Serbs did as well. When the vote was taken all republics voted in favor of the Carrington plan—except Milosevic, representing Serbia. According to Samardzic, Milosevic was furious and threatened the Montenegrins: “I’ll give you ‘what for’ if you want an independent and sovereign Montenegro.” The next day, after a visit from Milosevic’s emissaries carrying an implied death threat, Bulatovic changed his position.

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With the peace initiative having failed, war continued in Croatia, inflicting significant damage to Dubrovnik and the destruction of Vukovar, followed by war in Bosnia and Kosova. Bulatovic kept his life, while more than a hundred thousand others lost theirs. Montenegro, which had very nearly stopped the war, became more deeply implicated in the siege of Dubrovnik. As Samardzic said with great passion, “It was a war of conquest, an unjust war against Croatia, a war in which Montenegro disgraced itself by putting itself in the service of the Yugoslav Army and Slobodan Milosevic. This shame will remain with us for perhaps another 100 years.” In 1997 the citizens of Montenegro voted Bulatovic out of office in favor of Milo Djukanovic. Though an early supporter of Milosevic, Djukanovic “realized his error and turned against Slobodan Milosevic,” Samardzic testified. By 1997, after the war in Bosnia, the writing was on the wall: Serbia (along with Milosevic) was an international pariah. The future lay in forging a different path. As president in 2000 Djukanovic went to Dubrovnik, where he made an official apology to President Stjepan Mesic of Croatia for the destruction that Montenegrins had caused.47 He was the first leader to admit culpability for a part in the Yugoslav wars. Not only was this an important admission of responsibility; it supported the case against Milosevic that Croatia was not the aggressor in Dubrovnik. Milosevic had a repertoire of approaches for cross-examining prosecution witnesses. With international interlocutors he was collegial. For nearly all Kosovars he was scornful. With those who were illiterate, impoverished, or otherwise vulnerable he was dismissive and abusive. If a witness was Serbian Milosevic tried to woo him like an estranged lover. With some women he attempted chivalry. Always in reserve was his unimaginable cruelty. He used that part of his repertoire when he cross-examined Samardzic. His first questions implied that Samardzic had committed crimes, which the witness vehemently denied. Milosevic’s strategy of belligerence and accusation paid off, however. The witness became angry, and the anger unsettled him. With Milosevic’s constant refrain of “Why are you lying?,” Samardzic began to appear less than truthful. He fell into the trap many witnesses do, believing that they can control the facts known to them, omitting those that are inconvenient. Samardzic was loath to say anything negative about Milo Djukanovic, who at the time was involved in an election campaign for his political survival. In 1991 and 1992, the period covered by Samardzic’s testimony, Djukanovic was prime minister of Montenegro, while Momir Bulatovic was president. 144  M i l o s e v i c’s R i s e t o P o w e r

On direct examination the witness steered clear of any negative statements about Djukanovic, despite having criticized him in a statement given to the prosecution in 2000. This provided the opening that Milosevic needed. He proceeded to read from Samardzic’s earlier statement: “As for why Bulatovic and Djukanovic embraced Milosevic’s plan so enthusiastically, Bulatovic liked being President of Montenegro and that meant slavishly following Milosevic. Djukanovic was extremely ambitious. He saw himself as Milosevic’s top deputy or ruler in an expanded Serbia.” He also wrote that Djukanovic knew about paramilitary support facilities in Montenegro at the time. Samardzic tried to disavow his earlier statement, claiming that it must have been a mistake. Milosevic played innocent and asked the witness why he was accusing President Djukanovic. Finally Samardzic admitted, “I wanted to avoid mentioning now what I said two years ago. But it is true [that Djukanovic and Bulatovic knew about paramilitary war centers in Montenegro].” Despite his explanation, Samardzic’s attempt to protect Djukanovic affected his overall credibility. To further discredit Samardzic, Milosevic secured a statement from Momir Bulatovic. Though the statement was unsworn, Judge May allowed Milosevic to use it in cross-examination. He warned, however, that Bulatovic’s statement was not evidence unless it was given in court under oath. In his statement Bulatovic expressed astonishment at “Mr. Samardzic’s complete misrepresentation of events.” He noted that an important part of Samardzic’s testimony was based on what Bulatovic, then president of Montenegro, had told him. According to Milosevic, Bulatovic denied having told the witness that he withdrew his support for the Carrington plan because Milosevic exerted pressure on him. As discussed above, however, Borisav Jovic, Milosevic’s close ally, supported Samardjic’s position, not Bulatovic’s. The Momir Bulatovic of October 2002 is the one who emerged in 1991 when he buckled under pressure and threw in his lot with Milosevic. It was a fateful decision, as was Milo Djukanovic’s to oppose Milosevic. While Djukanovic defeated Bulatovic for the presidency of Montenegro in 1997, Bulatovic gained prominence as a named, though unindicted, co-conspirator with Milosevic in the ICTY indictment for war crimes and crimes against humanity in Kosova. He was slated to testify in Milosevic’s defense when the trial abruptly ended. Milosevic produced two additional documents that he alleged Samardzic had written. Both included conclusions that Croatia was carrying out a present-day genocide against the Serbs. Denouncing them as forgeries, M i l o s e v i c’s R i s e t o P o w e r   145

Samardzic denied ever having said such a thing. While his name was typed on one document, it did not bear his signature. It was neither the first nor the last time Milosevic produced questionable documents in court. Nor was it farfetched to consider that the former autocrat and architect of propaganda might attempt through the use of fraudulent documents to influence a trial he considered illegitimate. Even as Samardzic explained away each new attempt to discredit his testimony, he grew angrier, causing Judge May to intervene at one point so that everyone could “calm down.” While his angry responses played into Milosevic’s strategy, underscored by the repeated invocation of “Why are you lying?,” in the end Milosevic discredited himself. He simply could not resist one last cruelty. Milosevic’s final question was, “Mr. Samardzic, do you know the Serbian saying that people who lie have short legs?” Samardzic was a diabetic whose legs had been amputated. The prosecutor objected, “To speak of legs to a man who has lost his is astonishing and inexcusable.” The court agreed, calling Milosevic’s question “vulgar abuse.” Milosevic’s statement reflected negatively on his entire crossexamination, showing it for what it was: a no-holds-barred attempt to discredit a vulnerable witness, whose testimony hurt Milosevic’s cause. From the moment Samardzic first showed his vulnerability by becoming angry, Milosevic went for the kill, exploiting every weak point. He clearly enjoyed himself, often laughing while ridiculing the witness. In the end, however, his hubris brought him low. One of Milosevic’s major flaws was that he never knew when to stop. Moreover, Milosevic proved unable to sway the witness from several key points: Bulatovic, as president of Montenegro, took his orders from Milosevic, who as a result controlled policies in Montenegro; Milosevic decided, or at least significantly influenced, who would rule the rump Yugoslavia, as well as Montenegro; the JNA was involved in war crimes in Dubrovnik; Yugoslav forces attacked Dubrovnik without provocation, itself a war crime; and Milosevic scuttled the Carrington peace plan, which all republics except Serbia had initially accepted.

In his opening statement Nice predicted increased danger in the Croatia part of the case. Less than a month later the court was forced to close the trial to the public. Despite threats, Jovan Dulovic, a Serbian journalist formerly with the pro-Milosevic Politika Expres, gave damning testimony during his first day on the stand about the involvement of the Serbian police, JNA, and Ser146  M i l o s e v i c’s R i s e t o P o w e r

bian paramilitaries in massacres in Croatia and Bosnia. On the second day the court announced, “circumstances having changed, the Court will hear the rest of the witness’s evidence in closed session.” Overnight renewed threats had reached the witness through his family. The prosecution requested protective measures for more than half their witnesses in the Croatia case. Many were Serbs. Someone, it seemed, feared what Serbs might tell. While closing the trial to public view provided some measure of protection, it limited information in the public domain.48 Critical evidence linking Milosevic to war crimes might never be known. With C-037, a Croatian Serb politician, the court went into private session fifteen times to hear testimony on, among other topics, the Supreme Defense Council, intercepted telephone calls, and a meeting of Milosevic, Borisav Jovic, and the Croatian Serbs. Milosevic himself objected to closed sessions. The trial was his “only available opportunity” for “the public to be able to hear the truth.” Yet he was also often the first to provide information that might disclose a witness’s identity to supporters, the most obvious source of threats. Disclosure itself was a threat used to silence potential witnesses. When Milosevic protested, Judge May reminded him that a closed session does not affect the fairness of the trial, since the accused retains his right to fully cross-examine. Despite their drawbacks, closed sessions and protective measures were the price paid for having many witnesses come forward. Regime change in Serbia may have set it on the road to a more open society, but the criminal element, including among Milosevic’s supporters, continued to hold significant power. As Nice told the court when it expressed concern about the number of protected witnesses in the Croatia phase of the case, “The former Yugoslavia is a dangerous place.” Within a few months this fact would burst dramatically onto the scene in both Serbia and The Hague.

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T h e E x e r c i s e o f (D e Fa c t o) P o w e r Chapter 7

Dirty Tricks

In the latter years of the Tito regime attempts were made to decentralize the security services. That changed in Serbia after Milosevic came to power, first as the Serbian party president and then as president of the Serbian Republic. Beginning in 1989 he secured command and control over Serbia’s state security service.1 As he gained influence, then power over the JNA, he took control of military intelligence as well, according to military counterintelligence operatives and their chief, who testified for the prosecution. The first operative to testify was Slobodan Lazarevic, a self-styled James Bond who seemed to relish his role of recruiting agents and sources within international agencies.2 In fluent English he told the court that he had served in the army’s military intelligence sector, KOS, from 1968 to 1995.3 Lazarevic testified that authorities in Serbia proper ran the war in Croatia. Croatian Serb army officers were without exception JNA officers who continued to receive pay and benefits from the JNA and were in regular contact with Belgrade, he insisted. When the JNA finally withdrew from Croatia, it also left its heavy weapons for the Croatian Serb army that it had been instrumental in creating. Milosevic reiterated his defense that as Serbia’s president he had had nothing to do with the JNA. Lazarevic shot back, “You were head of the Yugoslav Army and you know it full well.” Going farther than he had on direct examination, the witness claimed that “everyone did Milosevic’s bidding.” Initially, he testified, there was some strain in Milosevic’s relationship with the JNA, though “they cooperated and carried out his wishes.” In fact the officers were divided. There were

those who feared the nationalist trend and did not trust Milosevic, while others saw him as the army’s best hope for survival. By gaining control of KOS, Milosevic increased his control of the JNA, replacing officers who questioned him with ambitious young men who would not. “You were in charge,” Lazarevic concluded. “You pulled the strings.” When pressed about whom he meant when referring to orders coming from “Belgrade,” Lazarevic obliged Milosevic by answering, “You were Belgrade.” Lazarevic added to testimony about outside instigation of the Log Revolution in Knin, credited with laying the foundation for the war in Croatia. He visited the site and learned that 75 to 80 percent of the men on the barricades were outsiders. His longtime superior in KOS, Nikola Zemunja, later confirmed this, stating that most were from Belgrade and were paid 100 Deutschmarks a day for their “rebellion.” Lazarevic, like Mustafa Candic, the agent who followed him to the witness stand, told of undercover operations to provoke war and undermine the peace process. The strategy was to create a “psychosis of fear.” Incidents included mining a recently reopened railway, which killed and wounded many people and effectively stopped efforts to normalize connections between warring parties, and killing a local Serb mayor who favored peaceful coexistence between Croats and Serbs. Candic, one of four assistant heads of KOS, testified that KOS ran a propaganda campaign named Operation Opera to provide disinformation to the media. In one instance corpses of Croats killed by Serbs were presented as the opposite. Operation Labrador involved terrorist actions inside Croatia, one of which was the mining of a Jewish cemetery. The purpose was to make Croats look pro-fascist. On the last day of direct testimony Lazarevic, the hardened intelligence officer, broke down in tears as he described conditions in a Serbian “concentration camp” set up to “retrain” Serbs from the Krajina who fled Croatia’s Operation Storm in August 1995. It was as much the betrayal of the Krajina Serbs as the camp conditions that caused his emotional outburst. After a negotiated ceasefire in 1992 one-third of Croatia remained in Serb hands. By 1995 fortunes had changed. Croatia was an independent state with its own army, while Serbs under the leadership of Milosevic and Radovan Karadzic had become international pariahs. Both the UN and the United States had instituted sanctions against Serbia and the rebellious Croatian and Bosnian Serbs. Croatia seized the opportunity to reclaim its land through Operations Flash and Storm. As the United States ambassador Peter Galbraith and the Croatian president Stipe Mesic testified, Milosevic cared little T h e E x e r c i s e o f (D e Fa c t o) P o w e r   149

about the Croatian Serbs or their autonomous regions. His goal was personal and political power. If he had to sacrifice Serbs to maintain that power, so be it. Lazarevic testified that Serbia’s authorities abandoned twenty thousand Krajina Serbs in his area, including his military unit, to the onslaught of the Croatian Army. (In all, the Croatian Army drove 200,000 Serbs out of Croatia in Operation Storm alone.) Finding themselves surrounded by forty thousand troops and under bombardment from the Croatian Air Force, the commander of the 21st Corps of the RSK (the breakaway Republic of Serbian Krajina) attempted to contact Milosevic’s office. He got through to Commander Momcilo Perisic of the VJ, who told him to “persevere.” The Croatian Serbs got the same message from President Zoran Lilic of Yugoslavia and the SDB head Jovica Stanisic in separate phone calls. The 21st Corps had been “sacrificed.” They surrendered and were provided safe passage to Serbia. At the border, rather than receive an expected welcome, the 25,000 soldiers and civilians were searched and relieved of any military equipment. As they neared Belgrade, they found access to the city closed. Police directed them to continue toward Kosova. With other male refugees, Lazarevic was eventually bused to Arkan’s retraining camp at Dalj. On disembarking they were made to run a gauntlet between Arkan’s men. According to the witness, “Someone had the idea that [the Croatian Serbs] needed to be retrained. Arkan was paid 100 Deutschmarks per head for that.” Conditions in the camp were “atrocious.” Property and identity cards were taken. Men were severely beaten daily. Three Serbs were chained to three telephone poles every day, and “anyone who went past could beat them.” Men were forced to carry huge rocks; if they dropped any they were beaten. These conditions led the witness to characterize the detention facility as a concentration camp—and to break down in court. According to him, Arkan addressed the 2,500 prisoners: “For five years we supplied you with weapons, food and manpower and you wouldn’t even fight in the end.” The men were being retrained to fight on the front lines, with Arkan’s Tigers behind them, ready to shoot any man who tried to withdraw. Some later successfully sued the FRY government for this forced conscription.4 Lazarevic’s testimony was undermined on cross-examination when he was caught in several lies, mostly exaggerating his importance. In a statement to the prosecution in 1999, he also failed to mention the betrayal by Serb authorities during Operation Storm. Milosevic was less successful in confronting the witness with letters faxed overnight, attempting to discredit him. It was a tactic that Milosevic used repeatedly, likely only to impress his 150  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

audience back home, since the out-of-court statements could not be considered evidence unless the authors appeared in court and testified under oath, or the witness adopted the statements. The greatest damage to Lazarevic’s testimony would result from the appearance of his one-time boss, General Aleksandar Vasiljevic, head of military intelligence during the Croatian war.

With a high-level insider’s testimony imminent and testimony of a second intelligence officer in progress, Milosevic absented himself from court for several weeks, supposedly because of exhaustion. The court expressed concern over implications for the trial’s length. Despite an abbreviated trial schedule, Milosevic was unable to conduct his defense within it. Del Ponte called on the court to take resolute action: “The Trial Chamber should give serious consideration to imposing defense counsel on the accused in order to avoid further disruption and delay and to ensure a fair and expeditious trial.” She cautioned the court to not further reduce the prosecution’s case as a way to reach a timely conclusion. In “the most significant trial ever to be held of a political leader,” justice would not be served by abbreviating the prosecution’s case in response to Milosevic’s medical condition, which he exacerbated by insisting on representing himself. Del Ponte continued, “It would also create a very dangerous precedent to allow difficulties that are largely self-imposed to obtain for the accused a trial that is significantly less complete than it would otherwise be.” Months before, Judge Robinson raised the possibility of appointing counsel to assist Milosevic. The accused made it clear that he was not interested. He reiterated his refusal to recognize the tribunal’s legitimacy or participate in its proceedings, except to communicate with the public. Milosevic’s position was inherently contradictory. Rejecting the legitimacy of the system, he nevertheless argued for his rights within it. He was not a qualified lawyer, nor did he provide himself with a good defense. He declared repeatedly that he had no intention of doing so. He wanted a forum from which to expound his political ideas and write the history and myth of Slobodan Milosevic. A trial would do as well as a pulpit or lecture hall, particularly given his circumstances. No accused has the right to use a trial for his own purposes. When he seeks to do so, silencing him is appropriate. The court’s duty was to assure that Milosevic had a proper defense. One could argue that allowing him to continue as he had for the prior nine months failed in that duty. Ultimately T h e E x e r c i s e o f (D e Fa c t o) P o w e r   151

it was up to Milosevic whether he chose to defend himself or not, but the court’s responsibility was greater. It was required to see justice done—not only to the accused, but to the victims and the community for whom the rule of law was established in the first place. Justice required a fair and expeditious trial. It did not require, and was not served by, allowing Milosevic to abuse the process. Ordering the accused to defend himself through an attorney according to tribunal rules was not silencing him, as some argued. It would have done no more than put him in the same position of nearly every other accused before the tribunal and courts throughout the world. The coercion lay in forcing him to stand trial at all according to international law and its rules of procedure. Certainly Milosevic protested that, as did his supporters, who also saw the tribunal as a political tool of the West. Silencing that protest in court once it had been heard and answered before trial is a function of the court’s power in seeking to render justice. The question came down to who was in charge in the courtroom. It should have been the judges, but they were not ready to exercise this responsibility in a way that some would have called heavy-handed. Likely they feared the appearance of unfairness, as well as hoping that concessions would entice Milosevic to participate more fully. As laudable as these motives were, they were based on the wrong assumption that if treated well the accused would respond in kind. It was never Milosevic’s way. Thus the judges made the process vulnerable to a bully whose modus operandi throughout a decade of leadership was the ruthless pursuit of his own agenda.

When Mustafa Candic returned to the stand he described “Breakthrough,” the operation by which the JNA, with SDS (Serbian Democratic Party) collaborators, distributed weapons from territorial defense depots to Croatian Serbs in 1991. Nice read a letter dated 16 October 1994 from Colonel Dusan Smiljanic of RS (the self-styled Republika Srpska) military intelligence to General Ratko Mladic. It confirmed that Smiljanic oversaw the distribution of twenty thousand weapons from Croatian Territorial Defense (TO) depots in August 1991. Never having seen the letter before, Candic said he was “speechless” because it tallied completely with his knowledge of events. Candic recalled being present when the KOS chief Aleksandar Vasiljevic disclosed that Milosevic wanted JNA generals to sign a loyalty oath. “I never saw [Vasiljevic] more angry. He was beside himself with anger. . . . He told us that Slobodan Milosevic allowed himself the gall to ask the generals of the 152  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

JNA, Serbs, to sign a loyalty oath to him.” Candic continued, “The accused had no right to ask the generals or anyone else to sign a loyalty oath.” Milosevic was president of Serbia at the time, with no authority over the federal army. Unfortunately for the prosecution, when General Vasiljevic took the stand he denied that the incident ever happened. He also denied that Slobodan Lazarevic had ever worked for KOS. “You’re Not Arkan”

As the second year of the trial began, another named but unindicted coconspirator took the oath to tell the truth before the three judges in courtroom 1. General Aleksandar Vasiljevic had been chief of military intelligence during the Croatian war. From his position in the JNA’s top echelon of power, Vasiljevic confirmed that Serbia armed and trained the Croatian Serbs under Milosevic’s direction, and that JNA officers were transferred to head units of the Krajina TO and later the Army of the Republic of Serbian Krajina (ARSK). According to the general thirteen thousand JNA officers served in Bosnian and Croatian Serb armies from mid-1992 until the end of the conflict. Milosevic first gained influence and later control over the JNA, Vasiljevic testified, as Mesic had before him. In 1991 Milosevic sent an emissary to ask the general for inside information about the JNA generals. Vasiljevic said he declined to provide any. Milosevic hit hard on this assertion in crossexamination, but the witness did not back down. Vasiljevic described an attempt in autumn 1991 to remove the federal defense secretary, General Veljko Kadijevic, who was an obstacle to Milosevic’s ability to control the appointment and removal of JNA officers. The attempted coup was launched by JNA officers loyal to Milosevic, recruited through the Vojna Linija, a group of MUP officers organized to establish relationships with loyal JNA officers, allowing Milosevic to circumvent officers whose loyalty was questionable. When the JNA chief of staff, General Blagoje Adzic, refused to assume Kadijevic’s position and General Vasiljevic persuaded the military police, who had surrounded the headquarters of the Defense Ministry, to stand down, the attempted coup failed. Three months later, however, Kadijevic resigned. Milosevic’s role, if any, in the two attempts to get rid of Kadijevic was not discussed in open session. Yet almost immediately after Kadijevic left, Milosevic’s power over the JNA increased, according to the witness. Vasiljevic began hearing that Milosevic had a list of generals who were to be “retired.” General Adzic showed him thirty-three names, including Vasiljevic’s deputy, General Tumanov. At Vasiljevic’s urging Adzic called Milosevic and secured Tumanov’s removal T h e E x e r c i s e o f (D e Fa c t o) P o w e r   153

from the list. Twenty-eight generals were involuntarily retired, followed several months later by thirty-eight more, including Vasiljevic. Milosevic acted without consulting the army chief of staff. When Nice asked whether Milosevic’s involvement in the retirement of generals was appropriate, Vasiljevic said no: by law the president of Yugoslavia had that authority. “General Adzic didn’t call anyone from the federal presidency, but he called Milosevic, knowing where the power lay,” Vasiljevic testified. Vasiljevic’s evidence indicated that Milosevic had de facto control over the JNA at least by February 1992. It also suggested that his power was more limited in the fall of 1991, at the time of the unsuccessful attempt to oust Kadijevic as federal defense secretary. Milosevic secured a major concession from Vasiljevic on precisely this point: “We have established that I could not have influence over military leadership, like Kadijevic [in September 1991].” “No, I don’t think you could,” Vasiljevic answered. When Milosevic pressed him on whether it was possible for him or anyone from Serbia to influence personnel changes in the federal army, Vasiljevic responded, “Until the end of 1991, no.” But the general insisted that Milosevic was behind the forced retirement of twenty-eight generals in February 1992. At first glance this part of Vasiljevic’s testimony produced a problem for the prosecution’s charges that Milosevic bore criminal responsibility for JNA attacks on Vukovar and Dubrovnik in the autumn of 1991. Looked at more closely, Vasiljevic did not say that the JNA failed to follow Milosevic’s strategy or refrain from engaging in a joint strategy in attacking Vukovar and Dubrovnik. According to Milan Babic, the RSK political leader at the time, Milosevic worked closely with and strongly influenced the federal defense minister and army chief of staff, both named members of the joint criminal enterprise. Vasiljevic testified only that Milosevic did not have sufficient control over the JNA to replace personnel at will until 1992. Vasiljevic’s testimony was at odds with that of Babic, Borisav Jovic, and Branko Kostic, who all maintained that Milosevic gained effective control of the army by the summer of 1991. Vasiljevic testified that the war with Croatia was greatly hindered by widespread JNA desertions and resistance to mobilization. As a result the SDB as well as Serbian political parties formed paramilitary groups to fight in Croatia. Paramilitaries participated not only out of enthusiasm for the Serbian cause but also for the opportunity to loot and, for some, the chance to get out of prison. The SDB sent Franko Simatovic to train volunteers in the Krajina as early as 1990.5 In early 1991 the SDB sent the Australian soldier of fortune Dragan Vasiljkovic (“Captain Dragan”) to set up another training 154  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

camp in Golubic, Croatia. Vojislav Seselj, head of the Serbian Radical Party and indicted co-conspirator, formed the Chetniks, also known as “Seseljovci” (Seselj’s men). The Serbian home guard (TO) was another source of soldiers. At a meeting in October 1991 to discuss the lack of troops, Serbia’s territorial defense offered its help. Subsequently Serbian TO troops were sent to the Slavonian battlefield. According to Vasiljevic, this could not have been done without Milosevic’s order. In December 1991 Kadijevic ordered the volunteer groups and paramilitaries disbanded after reported looting in Vukovar. They were then brought under official control of the JNA. Except for Arkan’s Tigers— Arkan was a special case, as demonstrated by his being allowed to enter the Serbian Ministry of Defense in Belgrade with his weapon, while General Vasiljevic, head of military intelligence, had to relinquish his. When Vasiljevic asked why, he was told, “Well, you’re not Arkan.” To pull Arkan’s Tigers into the joint command, JNA officers contacted Badza, commander of Serbian MUP Special Forces. Badza subordinated Arkan’s Tigers into a unit of the Serbian MUP he was setting up. It became known as the Red Berets. Eventually, according to Vasiljevic, the forces fighting in Croatia were unified under JNA command. During wartime the principle of unitary command necessarily came into play. The JNA took its orders from the Secretariat of Defense, which acted as staff to the Supreme Command. The chain of command led to the presidency of Yugoslavia, by the fall of 1991 a presidency in name only, consisting of the four Milosevic loyalists representing Serbia, Montenegro, Vojvodina, and Kosova. Playing to Vasiljevic’s JNA loyalties and the political views the two had once shared, Milosevic secured important concessions from Vasiljevic. In addition to contradicting aspects of Lazarevic’s and Candic’s testimony, Vasiljevic agreed with Milosevic: Croatian Serbs, he claimed, needed defending after the HDZ (Croatian Democratic Union) armed; only Serbian opposition parties (not the government) were forming paramilitaries; he knew nothing about reports by Amnesty International or Human Rights Watch on violations of humanitarian law in Croatia. The general also agreed with Milosevic’s effort to float before the court the discredited canard that the JNA only fired on the internationally protected Dubrovnik Old Town after being fired upon from inside and that Croats burned tires to simulate destruction from shelling and garner international sympathy for intervention. The prosecutor gained a concession when Vasiljevic admitted that he did not receive reports on battlefield logistics. They were a matter for another arm of military intelligence. Hence he had no diT h e E x e r c i s e o f (D e Fa c t o) P o w e r   155

Milosevic and the Warlord Zjelko Raznjatovic, also called “Arkan,” was a notorious criminal with an international reputation. Reportedly, in addition to robberies and drug smuggling, he had been a hit man for the Yugoslav secret police in Tito’s time. Lionized as a romantic outlaw by the Belgrade media, he was a logical choice to lead clandestine paramilitary units to fight Serbia’s wars and provide Milosevic with deniability. Borisav Jovic testified that paramilitaries were regarded as volunteers and subordinated to the jna according to regulations. Asked about Arkan, Jovic replied that he was a criminal. In a statement he wrote that he spoke once to Milosevic about Arkan and his group, complaining about their apparent ties to the Serbian police. “Milosevic’s reply was that Arkan was a criminal and that it was unthinkable that our official organs would co-operate with someone like Arkan. I then stated that we should clear it up and break any possible connection with that criminal Arkan, thus avoiding any attacks on our reputation. Milosevic agreed. However, nothing was ever done. Arkan even became so powerful that he had his own army, his own uniforms, etc. He had become a state within a state.” On the stand Jovic attempted to soften his statement, saying that he knew only of Arkan’s connections with the army in the field. He did not mention the police. At the same time, Jovic stood by his written statement.

Another witness, Hrvoje Sarinic, a special envoy from Tudjman to Milosevic who met one on one

with Milosevic over a lengthy period, testified to Milosevic’s admission that Arkan worked for him. In response to Sarinic’s inquiry about the notorious warlord, Milosevic laughingly answered, “I have to have someone as well who is going to do part of the job for me.” Sarinic said he was well aware of the “evils” of Arkan and his army and knew that Milosevic was behind him. He further testified that Arkan and his army of five thousand men could not have been organized and armed without Milosevic’s support and financial backing. “[Milosevic] was all powerful in Serbia at the time,” Sarinic concluded. Milosevic denied having said anything to him about Arkan. Sarinic insisted that his testimony was “the absolute truth.” Milosevic asserted that Arkan’s Volunteer Guard was never more than a company, not an army of five thousand men. “Where do you get such fantastic ideas?,” he asked Sarinic. “From our intelligence services,” Sarinic cooly replied, adding, “If you weren’t involved in it, you wouldn’t know if it was a company or not.” After a little more back and forth, Milosevic declared, “You have no document which could link me to activities of the Serbian Volunteer Guard.” “No, but you have a reputation for leaving very few traces,” Sarinic countered.

rect knowledge of the fighting in Dubrovnik. Vasiljevic evaded assigning the JNA responsibility for one of the conflict’s greatest atrocities—handing over 264 prisoners to paramilitaries who executed them after the fall of Vukovar. He merely admitted that there were people in the TO who were capable of uncontrolled acts. After Vasiljevic’s last day of testimony Nice might have wondered whether 156  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

the general’s helpful testimony outweighed what was harmful. But the points the general conceded to Milosevic were minor compared to his testimony showing how Milosevic gained control of the JNA, controlled the forces fighting in Croatia, and supplied the means to wage war that conquered onethird of Croatia’s territory for Serbia. Insider witnesses present a challenge for any prosecutor. By definition they were at one time close to the accused. They have information that can implicate the accused in crimes in which they themselves may have participated. They often have the same worldview as the accused. They testify for a variety of reasons—revenge, a desire to avoid being prosecuted, a sense of justice, patriotism, wanting their story on the record. Along with important incriminating information, which may not be obtainable from other sources, may come information that does not favor the prosecution’s case. A good prosecutor will take the risk, however, relying on his or her ability to assist the court in sorting the wheat from the chaff. Somewhat less risk is involved when a case is tried to experienced professional judges who are well practiced in weighing all types of testimony, as was true of the ICTY. In Vasiljevic’s case the overall result was worth the risk. Key Insider Testifies

In late November 2002, as Milosevic returned to court after a two-week illness, he faced one of his alleged co-conspirators, the highest-level insider to testify to that point. Throughout nine days of testimony the witness’s identity was a closely guarded secret, though anyone familiar with Balkan events in the early 1990s easily identified C-061. On the tenth and last day of his testimony, the witness announced that he would go public. C-061 was Milan Babic, former president of the Krajina Serbs until Milosevic orchestrated his ouster in February 1992. At the time of his testimony he was a named but unindicted member of the joint criminal enterprise.6 Babic turned out to be the prosecution’s smoking gun. His testimony made the critical link between Milosevic and the conflict in Croatia. And he established that Milosevic (together with Karadzic) devised the plan for Serbs to forcibly take control of one-third of Croatia, expelling its non-Serb population in the first ethnic cleansing of the Balkan wars of the 1990s. Babic, a nondescript former dentist, testified that he met with Milosevic on more than thirty occasions. Milosevic, he said, was behind the war in Croatia. He controlled the armed forces of the Serbian Krajina and manipulated the people and the politicians. He created a war where a negotiated resolution might have been obtained. He oversaw cleansing the Croatian T h e E x e r c i s e o f (D e Fa c t o) P o w e r   157

Krajina of all non-Serbs through terror, violence, and property destruction. He also controlled the peace process. No negotiated settlement was ever achieved without his approval. According to the witness Milosevic accomplished all this by collaborating with more than a dozen individuals, civilian and military, from Serbia, Montenegro, and Serb-majority areas in Croatia and Bosnia. His goal was to create a Serb-dominated state out of the remains of a disintegrated Yugoslavia. Milosevic was involved in planning Yugoslavia’s disintegration, Babic testified. An intercepted telephone conversation between Milosevic and Radovan Karadzic in July 1991 corroborated his testimony. In the conversation Milosevic can be heard saying: “You see, [Slovenia and Croatia] want to step out and are carrying out these things exactly the way we planned it.”7 The plan was to create conditions for Croatia and Slovenia to leave Yugoslavia, while the part of Croatia with a Serb majority would remain. In that way all Serbs would live in one state. Milosevic admitted that this was his intention, but denied that it could be construed as a plan for “Greater Serbia.” He contended that the state where all Serbs could live together was Yugoslavia. When Slovenia and Croatia seceded, Yugoslavia continued to exist. To include Croatian Serbs, he maintained that Yugoslavia was made up of constituent nations (ethnic groups) and that they, not the republics, retained the right to secession. Therefore when Croatia voted to secede, it could not take with it the territories where the majority population was Serb, unless they agreed. Milosevic’s first obstacle in effecting the plan was to convince Croatian Serbs that they should hate and fear the Croatian government and the Croat neighbors with whom they had lived for centuries. Corroborating earlier testimony by military counterintelligence agents, Babic described a campaign of disinformation and provocation in which Milosevic’s secret police, the army’s KOS, and the Belgrade media participated. As Croatian extremists escalated their nationalist rhetoric, Milosevic’s media reminded Serbs of the mass atrocities that Croat nationalists (Ustashas) committed against Serbs during the Second World War.8 Babic’s testimony on this point was supported by C-037, a former Croatian Serb politician who testified that he and other Croatian Serbs favored a negotiated solution to problems Serbs were experiencing as Croatia moved toward independence. But there was an extremist element favoring ties with Serbia, which gained support by stoking fears that the Croatian fascism of the Second World War would return. When Milosevic suggested that Serbs

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did nothing more than defend themselves on territory where they had lived for centuries, C-037 answered with some passion: “Where Serbs exercised control, they should not have torched Croatian villages or expelled or killed people. It is not right. . . . If you are involved in defense, it doesn’t give you the right to kill others.” Behind his passion was a family history of living in Croatia with Croats as friends and neighbors. “I was born in Croatia. My parents were. They lived through the Second World War. All their relatives were killed in Ustasha camps. But it was also Croats who saved them. We have cases where we were saving as well as killing each other. I live in the conviction that we Serbs should have done more to prevent this. I had no fears. My father—Croats saved him from a camp. He was 12 years old.” C-037 expressed the truth of many: good is not defined by nationality, religion, or ethnicity. When the media in Belgrade reported that the Croatian assembly had declared a state of war and the police were moving toward Knin, the police inspector Milan Martic (later to head the Krajina military) and his men took weapons from police stations and distributed them to Serbs. Barricades had already gone up. The Log Revolution was cited by earlier witnesses as the beginning of war in Croatia. Supporting Lazarevic’s testimony about a disinformation campaign, Babic testified that the media report which supposedly sparked the Log Revolution was inaccurate. It had been furnished by the SDB. In addition to propaganda Milosevic established a police and military structure in the Krajina under Martic. Members were drawn from the Serbian MUP and its public security sector, as well as local police in Croatian Serb municipalities. “You took over the [Serb] armed forces in Krajina through Martic,” Babic accused Milosevic. Martic reported to the SDB chief, Jovica Stanisic, who reported directly to Milosevic in a de facto chain of command that directed Serb actions in the RSK. Croatian Serb police and military authorities ultimately answered to Milosevic. Nor was the civil hierarchy able to act against Milosevic’s wishes, as Babic learned when Milosevic orchestrated his ouster as president. Milosevic established control in response to Babic’s request for assistance in organizing the Krajina police force. Rather than provide advisors, Milosevic sent paramilitaries and members of his SDB who established headquarters. “I had expected legal assistance, professionals who would work on the organisation of the secretariat of internal affairs in SAO Krajina, that would organise the services within the internal affairs sector. However, instead, officials of the state security arrived, headed by Franko Simatovic, who got the

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nickname ‘Frenki’ in Knin. And they organised a military camp in Golubic and formed their . . . paramilitary army. And they exerted control over the secretariat of internal affairs of Krajina.” When Milosevic asked Babic why he was accusing Simatovic, Babic retorted, “I am not accusing. I know he was subordinated to Stanisic and you advocated, requested, demanded that he be in Krajina. You said he was a good guy.” Babic also testified that Milosevic was de facto commander of the JNA and of all forces fighting the Croatian Army. There were two parallel chains of command. One descended from the Yugoslav presidency to the JNA and then to the territorial defense in Croatia. The other was headed by the SDB and the Serbian interior ministry. The local militia, volunteer units, regular police, and groups belonging to the Krajina state security service were subordinated to it. At the head of both was Slobodan Milosevic. The two lines of command mostly operated together in the field under the JNA’s overall authority, Babic testified. The prosecutor Hildegard Uertz-Retzlaff asked why Milosevic, then president of Serbia, was at the top of the hierarchy, with control over the federal army. Babic answered, “He was the main political figure, the most influential, the most powerful. He had the initiative and he subordinated all other structures to his initiative in Yugoslavia.” Judge Robinson pressed Babic to clarify whether he understood the concept of commander in chief and whether he was in fact claiming that Milosevic had that authority. Babic said that he did, and though the SFRY presidency formally commanded the JNA, Milosevic secured power de facto through his control over the SFRY rump presidency from the summer of 1991 on, as Stipe Mesic had testified. Babic claimed that Milosevic had influence over General Kadijevic, federal defense minister, and General Adzic, JNA chief of staff. His sources, he said, were members of the rump presidency and Milosevic himself. Milosevic created the Krajina Serb army and it remained under his authority. “The commanders of the army were appointed by the president of Serbia, . . . Slobodan Milosevic— and it was financed, logistics support was given from Yugoslavia. . . . Krajina supplied the men for the army and the regulations . . . for it to be able to function.” Babic described how Serbia supplied the Krajina with weapons. In a conversation with Milosevic, he expressed concern about the manner in which Milosevic was intending to protect the Krajina Serbs: Q. And what did you ask . . . of Mr. Milosevic? A. Precisely that: how was he intending to protect us, because he was 160  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

always saying the JNA would protect us. And there were the events in Pakrac and other events.9 And he said, “I have already purchased for you in Hungary 20,000 pieces of weapons.” .... Q. What was Mr. Milosevic’s reaction to this conversation about weapons and that you didn’t know anything about the weapons he had purchased? A. He said something like a swear word, and he said, “These people of mine have cheated me or misled me.” And then he left to go to the secretary’s office. And not long after that, Radmilo Bogdanovic [minister of the interior] and Jovica Stanisic came, and he asked them, “What about the weapons?” Radmilo Bogdanovic said, “We have already sent 500 pieces to Banija.”10 I said I knew nothing about it. Bogdanovic said, “You don’t have to know everything.” And Milosevic added, smilingly, “Yes, yes. Milan should know these things.” And then Bogdanovic just made a face to the effect, “What are you saying?” Jovica Stanisic didn’t say anything. He just had an angry expression on his face. The conversation is strong evidence that Milosevic and his lieutenants controlled events in the Croatian Krajina, while Babic and other Croatian Serb authorities were merely front men to be used and discarded. Babic also testified about the carefully planned and coordinated pattern of ethnic cleansing, designed to produce a Serb region that could be attached to Serbia proper. Martic’s men would engage in provocative actions, such as opening fire on a village. When fire was returned the Krajina Serb forces would respond with mortars and heavier fire. The JNA then brought in artillery under the pretext of separating the warring sides. Instead they joined the Krajina Serb forces to expel the Croats, military and civilian, from the territory. This was followed by looting, the torching of property, and the killing of individual Croats, mostly elderly, who remained. The pattern was repeated in village after village, until the Krajina was effectively cleansed of its non-Serb population. Asked whether Milosevic knew what was happening on the ground, Babic replied, “Milosevic must have known. His Service [SDB] was present there and I met the head of his Secret Service there [Stanisic].” At some point Milosevic’s plan to have all Serbs in one state changed, according to Babic. “The territory was revised on which the state would be created. . . . Serb territories in Croatia were to be given to the Croatian authorities and the territory of Bosnia-Herzegovina was to be divided between T h e E x e r c i s e o f (D e Fa c t o) P o w e r   161

Croatia and Serbia.” He heard this from Milosevic, after his well-known meeting with Tudjman at Tito’s old hunting lodge at Karadjordjevo. Babic described it to the court: Towards the end of March 1991, that’s when it happened, and he brought in a map on that occasion, a map of the former Yugoslavia, with the republican borders on it. He placed it on the table. He took his thumbnail and drew a line, as if he was separating a portion, breaking away the territory of Bosnia and Herzegovina, near Bihac, and with this gesture and incision, he said, “Tudjman needs Bihac.” And then he added, “He needs a road between Benkovac and Drnis too.” And I remained rigid. I didn’t react at all. . . . I was stunned because it meant . . . quite the opposite to what he had been saying up until then, that the SAO [self-declared Serbian Autonomous Region] Krajina had the right to remain in Yugoslavia and that the JNA would protect it. . . . [H]aving said this, it was quite obvious that it would be Croatian territory. . . . As Babic feared all along, Milosevic intended to betray the Croatian Serbs, abandoning them to their fate in Croatia. Testifying gave Babic the opportunity to confront Milosevic with his betrayal: “You sought to cheat, to trick the peoples of the Krajina, to play around with their destiny . . . to achieve your plans.” His testimony corroborated Slobodan Lazarevic’s anguished description of Belgrade’s abandonment of the RSK Army and civilians during Operation Storm in 1995. After going to such lengths to start a war, with all its death and destruction, Milosevic had no more need of the Krajina Serbs. When the Croatian army retook the territory, 200,000 Croatian Serbs fled the Krajina across Bosnia and into Serbia. Without a change in rhetoric, Milosevic could revise the plan to have all Serbs in one state. Milosevic also controlled the international negotiating process, according to Babic. Whether the Carrington plan, the Vance plan, or the Z-4 proposal, it was Milosevic who decided whether to support it and how the Serb delegations should conduct themselves in negotiations. Milosevic wanted the Vance plan adopted. Originally opposed by Croatian Serb delegates, it was embraced by them under pressure from him. The Vance plan sought to resolve the Croatia war by establishing a ceasefire, demilitarizing all sides, withdrawing the JNA, and introducing United Nations peacekeepers with a political settlement to come later. Though UN forces came to the region, the rest of the plan was never implemented. The JNA formally withdrew, but it left weapons, equipment, and officers behind for the Croatian and Bosnian 162  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

Serbs, who would fight the next war. Local Serb forces hid their weapons. Martic prevented Croat refugees from returning to their homes in the Krajina. It was an example of the modus operandi that Milosevic demonstrated throughout a decade of wars and international attempts to stop them. Promise and do nothing. The source of Babic’s information was his own experience. When asked how he knew that Milosevic decided which officers would command the RSK Army, Babic replied, “I participated in the formalizing and legalizing of Milosevic’s practical decisions.” On another occasion, corroborating the testimony of Nikola Samardzic, he explained how he knew of Milosevic’s campaign to force Bulatovic to change his position on the Carrington plan: “I heard it personally from Milosevic.” Babic testified that Milosevic, through his de facto control over the National Bank of Yugoslavia, assisted the RSK financially with loans and transfers of funds. Asked whether the SAO Krajina (later the Republic of Serbian Krajina, or RSK) could have existed without this support, he answered, “No. Under no circumstances. The SAO Krajina and RSK were completely economically and financially dependent on ­Serbia.” Milosevic, the former banker, disputed Babic’s characterization of the banking transactions, claiming that the RSK merely used the bank as any other state entity would. Babic stuck to his position, “It functioned as a component of the unified system of Yugoslavia.” In frustration, Milosevic retorted, “I just explained it is not the way you describe!” At which point Judge May intervened: “He’s entitled to give his opinion. Your comments are of no assistance.” Not to be deterred, Milosevic pressed his point, “You are right, Mr. May. The witness has the right not to know something, but he doesn’t have the right to lie.” Returning to Cross-Examination 101, Judge May pointed out, “That is a matter for us . . . [to decide] between what you assert and the evidence he gives.” Aside from his disparaging treatment of the witness, Milosevic offered some legitimate challenges to his testimony. Babic testified on direct examination that the commanders of the local territorial defense and police in Krajina were JNA officers, sent at the direction of the accused. Milosevic offered the alternative theory that if JNA officers (retired or active) volunteered for service in the Krajina, neither he nor the JNA had control over them. It was at least a plausible explanation for why JNA officers were commanding local units. Babic responded that though the officers may have offered themselves as volunteers, they arrived because of a decision from General Kadijevic. Moreover, all TO units were subordinated to the JNA in combat operations T h e E x e r c i s e o f (D e Fa c t o) P o w e r   163

and all “former” JNA officers continued to receive their salaries from Belgrade. Milosevic made much of Babic’s change of position from the early 1990s, when he was a radical Serb nationalist. Babic admitted that he had believed in and followed Milosevic’s policy of applying the constitutional right of selfdetermination to nationalities, not republics, giving Serbs in Croatia a right to live in the same state as other Serbs. But he had become disillusioned. “Today I think differently because such a notion was ethno-egoistic [ethnocentric]. It led to interethnic confrontation, conflict and war and all the horrors that occurred in the war. The thesis was fatal for the peoples of Yugoslavia. That is my opinion today.” Milosevic commented, “A stand cannot be principled at one time and not at another.” The witness disagreed, repeating that he now saw the result as being disastrous for Serbs and Croats. Milosevic finished the second day’s cross-examination by asking about Babic’s own connection to the joint criminal enterprise. “In addition to the fact of your testifying against me are you also a suspect of this institution?” Babic had the last word before the court declared a private session: “I am not testifying against you. I am testifying to the truth.” Babic provided the crucial link between Milosevic and ethnic cleansing in Croatia. The link confirmed that Milosevic, then head of Serbia, controlled Serb military action in the RSK. Babic’s testimony established that in addition to having de facto control of the JNA, Milosevic directed an alternative chain of command headed by his Serbian police. Through this parallel structure Milosevic, hiding behind the JNA and Milan Martic, took control of one-third of Croatia, cleansed it of non-Serbs, and held it until it no longer served his purposes. Babic’s ten days of testimony more than justified the prosecution’s decision to forgo the testimony of fourteen other witnesses so that he could speak fully. It showed that Nice had known what he was talking about when he earlier addressed the court about insider witnesses. “Cases like this would be easy to prove if one member of the inner circle were able to come and give accurate evidence of what happened. [The case] could almost be proved with one witness.” While insider witnesses come with their own baggage, Babic’s testimony confirmed Nice’s prediction: The case could almost be proved with his testimony. Commanded and Supplied by Belgrade

Nearly a year later one of Babic’s compatriots came to testify. Milan Milanovic was deputy defense minister of the Serbian Krajina’s sister autonomous 164  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

region in eastern Croatia, the Serbian Autonomous Region of Slavonia, Baranja, and Western Srem (“Eastern Slavonia”). More than Babic, he had been a team player for Milosevic, following directions given in personal meetings and by a private red telephone directly connected to the Serbian government. Like Babic he was expendable. When Milosevic’s other lackeys in the region wanted to get rid of Milanovic, they turned to Milosevic. Despite years of loyal service, Milosevic requested his resignation. Ever obedient, Milanovic complied. But Milosevic’s willingness to dispense with his one-time loyalist came home to roost in a Hague courtroom where the tables of power were turned. Milanovic confirmed, as Eastern Slavonia’s deputy defense minister, that he was on the JNA’s payroll. He also corroborated testimony that the JNA was Serbianized by August 1991 and was the controlling force in the region. The Serbian MUP sent Radovan Stojicic (“Badza”) from a special antiterrorist unit to organize the Eastern Slavonia TO. Countering Milosevic’s assertion that Badza had been a volunteer, Milanovic replied, “Not for a moment was it my understanding he was there as a volunteer.” Not only did he get weapons, equipment, and his salary from Serbia, but on completion of his task he was appointed assistant minister of internal affairs in Serbia. Of the fifteen men he brought with him to Croatia, ten worked for the SDB. As in the Krajina, the Eastern Slavonian TO was subordinated to the JNA in all military operations. While the JNA had 36,000 troops in Eastern Slavonia, Badza’s TO had twenty thousand fighters, of whom three to four thousand were from Serbia. Through them the region was “cleansed” of most nonSerbs and remained under Serb control until 1995. Milanovic corroborated Babic’s testimony that Milosevic controlled negotiations for the RSK from 1991 to 1995, deciding the fate of the Croatian Serbs without their assent.11 In 1995 Milanovic headed the RSK team negotiating with Croatia and the Contact Group. The team consulted Milosevic both before and after sessions, he testified. Milosevic made his loyalist Goran Hadzic part of the team, though the RSK had not appointed him. Hadzic, Milanovic stated “[worked] behind our backs.” Milanovic was also involved in negotiating the Erdut agreement in Croatia to resolve the issue of Eastern Slavonia while Milosevic headed the negotiating team at Dayton.12 Tudjman did not want to sign Dayton until the Eastern Slavonia issue was resolved. On the eve of signing the Erdut Agreement, Milanovic received a message from Milosevic ordering him to sign. Though the Erdut agreement provided for a transitional period under UN operation, it eventually led to the return of Eastern Slavonia to Croatia. T h e E x e r c i s e o f (D e Fa c t o) P o w e r   165

Milanovic went to see Badza, who called Stanisic, who sent a telegram: “I’ve tried everything with the President, but we have lost [Eastern Slavonia]. God save them.” Despite Badza’s advice not to sign the agreement, the next day Milanovic, still the loyalist, signed. When he later met with Milosevic, the president told him he had done the right thing, despite criticism from “Milosevic’s associates.” Milosevic admitted that Serbia provided financial assistance to the Croatian Serbs, but claimed that this was for humanitarian reasons. Milanovic only partly agreed: “I know the money came from the FRY and filled the coffers of our budget for the purposes you mention (health care, education, pensions). It was mostly spent on the army and police.” Milosevic had admitted as much in a signed statement to an investigative judge in Belgrade in response to charges that he had misappropriated millions of dinars in state funds while in office. Milosevic was deposed in October 2000; six momths later, on 1 April 2001, Serbian police arrested him after a thirty-six-hour standoff at his home.13 This was how Milosevic accounted for the missing funds: “As regards the resources spent for weapons, ammunition and other needs of the Army of Republika Srpska and the Republic of Serbian Krajina, these expenditures constituted a state secret and because of state interests could not be indicated in the Law on The Budget, which is a public document. The same applies to the expenditures incurred by providing equipment, from a needle to an anchor, for the security forces and special anti-terrorist forces in particular, from light weapons and equipment to helicopters and other weapons which still remain where they are today, and this was not made public because it was a state secret, as was everything else that was provided for the Army of Republika Srpska. In my opinion, these matters should still constitute a state secret.” In his effort to save himself from Serbia’s charges, he provided evidence to support the tribunal charges against him. The statement was admitted into evidence at his trial. In other testimony Milanovic told the court that he knew nothing about the massacre of prisoners at Ovcara farm after the fall of Vukovar. When Milosevic tried to elicit his agreement that the JNA, the MUP of Serbia, and the Serb leadership knew nothing about it either, the witness abruptly corrected him. “I said Radovan Stojicic ‘Badza’ had nothing to do with it. I did not say the JNA. It was stationed there. An Army brigade was there. The entire region was under JNA control.” Milosevic asserted that the same was true of Lovas (where fifty Croatian prisoners were forced to walk through a minefield)—neither the JNA nor any individual linked with Serbia had anything to do with it. Milanovic agreed that the same was true at Lovas as at Ovcara, but 166  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

he reached a different conclusion. “A state of war was proclaimed. War law prevailed. All civilians bearing arms were under the command of the JNA.” What Milosevic did was in some ways remarkable. He admitted that Serbia provided extensive assistance to the RSK during its war with Croatia, a war in which Milosevic said Serbia was not involved. Serbia provided substantial financial resources for its government, including military and police services. It provided special military training and assisted with military mobilization. All this Milosevic admitted. His defense was: “So what? It’s not a crime.” But if done in support of criminal activity (“ethnic cleansing”), these actions too were criminal and those who authorized them were accountable under the law. Like Babic’s testimony, that of Milanovic raised the accused from a supporting player to the director. He did not “just” supply money and military know-how. He sent his crack antiterrorist unit and its boss to organize and command military actions in Eastern Slavonia. He placed his loyalists in positions of power. His security service operated throughout Eastern Slavonia. From his office in Belgrade he made war and, when it no longer served him, he ordered peace. He left Serbs in Eastern Slavonia to their fate—either as refugees or as citizens of a state with which they had only recently made war. As his fellow Serbs testified, Milosevic had not just supported his brother Serbs. He directed them in a criminal enterprise he had helped design.

The prosecution called a JNA general to strengthen evidence that Milosevic was directing the war and ethnic cleansing in Croatia. In the autumn of 1991 General Miloslav Djordjevic petitioned to have his retirement delayed after Croatian forces brutally executed one of his officers. Djordjevic was appointed to head a coordinating office under the Serbian defense minister, staffed by other retired or nearly retired JNA officers. He served in that capacity from 20 October to 22 December 1991. Throughout he remained an active duty JNA officer, as did the other staff. The coordinating office’s role was to facilitate the staffing, supply, financing, and organization of the Serb territorial defense in the autonomous regions of Croatia. It was illegal for Serbia to do this, whether as one republic of the SFRY on the territory of another republic or, later, as one state on the territory of a foreign state (after international recognition of Croatia’s independence). The coordinating office also connected Milosevic to ethnic cleansing in Croatia. Djordjevic testified that his boss, the Serbian defense minister Tomislav Simovic, informed Milosevic about the work of the coordinating office T h e E x e r c i s e o f (D e Fa c t o) P o w e r   167

on several occasions. This testimony was later corroborated by Simovic’s chef de cabinet, Dobrila Gajic-Glisic, who also gave evidence that Simovic’s office was given the task of drafting a law for a Serbian army, as discussed above. Djordjevic testified that the coordinating office received requests from the Croatian Serb TOs for personnel, supplies, and weapons. When the office could not fill them directly, it passed requests on to the Federal Secretariat for National Defense (the Defense Ministry, or SSNO). “The Coordinating Group didn’t engage in formation of the TO but did engage in providing assistance to the TO staff, in organizing structures and units such as TO brigades. . . . They helped in constituting units out of lower level manpower they had at their disposal,” the general testified. The financial administration of the Defense Ministry and the Serbian finance minister paid salaries and benefits of lower-level reservists in the TO, which operated outside the JNA’s military district brigade structure. On at least one occasion, in response to a request to the Serbian interior minister from Milan Martic, head of the RSK police, the coordinating office helped secure the release of funds held in a Serbian account for the Croatian Serbs. In addition, JNA officers assigned to head TO units remained active-duty army officers. An order signed by General Radislav Krstic on 20 September 1991 transferred eight JNA officers to the Serbian Krajina TO: “The abovementioned [JNA officers] are obliged to report to the commander of the [TO] unit and remain in accordance with the needs of the unit and in accordance with the law of the armed forces, after which they will return [to the JNA].” A prosecution chart showed the weblike structure of relationships connecting the JNA, Defense Ministry, and Croatian Serb TOs. It was a graphic illustration of the JNA’s transformation into a Serbian Army at least by the fall of 1991. Fear of losing JNA support was also a major reason why Babic refused to go along with the Vance plan, calling for JNA withdrawal from Croatian territory. Nevertheless Djordjevic testified to an understanding among JNA generals that they would come to the aid of the Croatian Serbs if Croatia moved against them, another indication of their sympathies among the Yugoslav republics. Milosevic attempted to get Djordjevic to agree that the evidence merely showed the Croatian Serb TO to have been fully integrated into the JNA chain of command. The presidents of the republics (such as himself ), he stated, had no competency over federal authorities. Djordjevic responded, “That’s how it should have been under the law.” Djordjevic also faulted Milosevic for his poor leadership, which he said contributed to the breakup of Yugoslavia. Under pressure from Milosevic he agreed that the secession of 168  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

Slovenia and Croatia had destroyed Yugoslavia, but he added, “It is also true that you and the leadership of the country at the time and the Federal Secretary of National Defense . . . assisted in speeding up this process [of secession and breakup] and you were not sufficiently responsible to find a solution as in the Czech Republic or Slovakia.” A remarkable change occurred during Milosevic’s cross-examination. While Djordjevic initially held strongly to his direct testimony, after a morning break the general grew more compliant to Milosevic’s suggestions. Other insiders demonstrated the same change of attitude. It is not clear why. Certainly Milosevic’s persona, imbued with near dictatorial power, retained some of its influence, at least to those who had bowed before it for so many years. That Djordjevic’s attitude changed so quickly and after a break in the trial (though one of only fifteen minutes) suggests that someone may have “reminded” him how dangerous it was to testify against Milosevic. But the court had no proof of this. With his suddenly cooperative attitude, Djordjevic agreed that Croatian Serbs had been mostly forced to organize in self-defense after the rise of extreme Croat nationalism and Croatia’s disarming of Serb-dominated police forces. The witness also followed Milosevic’s lead and testified that Croatian forces attacked all JNA barracks and had plans to liquidate JNA officers and their families. The JNA’s role, he agreed, was to create a buffer zone between contesting forces in Croatia. The general was perfectly willing to contradict his direct testimony. The coordinating group, he said, actually worked for the Defense Ministry, though partly for Serbia. The Defense Minister did not take part in operative planning or training of military forces for the Krajina. The Coordinating Group provided advice and did not issue orders to the Croatian Serb TO. Decision making was retained by the federal Supreme Command. The Coordinating Group relied on federal military districts for logistical support for the Croatian Serbs. Funding the Croatian Serb TO was “mostly” in accordance with the rules. And while the federal minister of defense advised Milosevic about the Coordinating Group, the witness addressed Milosevic, the minister simply informed “you.” There were points on which the general would not be moved. One was Milosevic’s favoritism for the Serbian police over the JNA, which Djordjevic felt acutely. Another was Milosevic’s role in appointment of the JNA leadership. Milosevic asked, “When the appointment of generals was at stake, was the SSNO [Defense Ministry] opinion asked?” Djordjevic did not want to answer: “Can we pass over this question for your sake?” Judge May, however, was not so solicitous: “Why? Can you give us the answer?” The judge’s T h e E x e r c i s e o f (D e Fa c t o) P o w e r   169

intervention elicited a response, “Formally so. In reality it was not like that. Mr. Milosevic required his generals to tell him what generals could be counted on and which could not.” Djordjevic’s testimony was a curious blend of stubborn adherence to the truth that he came to tell, including confronting the accused over his role in the breakup of Yugoslavia and his devaluation of the JNA, and an almost mesmerized compliance with Milosevic’s suggestions about other events. Like witnesses before him, the general appeared to be a man whose professional career was dedicated to service of the old Yugoslavia. When power shifted he hardly knew where to place his loyalties. Seeing his army, and especially his colleagues, attacked by what he perceived as Croatian extremists, he threw in his lot with Serbia as a perceived way of fighting for Yugoslavia, the principles he believed in, and the only future he could imagine. Perhaps his contradictory testimony stemmed from anger at Milosevic for his part in Yugoslavia’s breakup and his wish that Milosevic had meant what he said and prevented it.

With a range of protective measures, including voice and face distortion and a pseudonym, a member of Arkan’s Tigers came forward to testify against the boss of his former boss. Arkan, the witness K-2 said, led a paramilitary unit within the SDB that came to be known as the Red Berets. He described how trucks with SDB identification regularly brought supplies of weapons and ammunition to one of Arkan’s training camps in Croatia, where they were picked up by other paramilitary groups. In addition to the SDB’s on-theground involvement in training and supplying paramilitaries in Croatia, K-2 testified, Franko Simatovic, SDB chief of operations, told his unit that they must do whatever they were asked. In exchange, “the doors of the President [Milosevic] were open to us.” In the autumn of 1995 the Red Berets gained official status as the SDB’s Anti-Terrorist Operation (JATD) at a ceremony opening a training camp at Kula. JNA officers and SDB members attended. The prosecution was soon to unveil a video of another ceremony two years later where Milosevic recognized the Red Beret’s achievements in Croatia and Bosnia. Milosevic’s first question of K-2 was designed to place him in jeopardy. It revealed Milosevic’s continued close ties to elements of Serbia’s security structure. Milosevic: [In your statement] you ask for all necessary measures to protect your identification . . . as you say your life is in grave danger. . . . 170  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

Do you still believe your life is in grave danger in view of the fact that it has been 21/2 years since your statement? K-2: Yes. Milosevic: Is the reason you believe your life is in danger your statement to [prosecution] investigators or the fact that some people link you to the killing of Arkan? Why is your life in danger? K-2: Now, for both reasons. Though Nice interrupted to caution the court that Milosevic’s questioning “may be a subtle way to identity the witness publicly,” the court allowed the accused to continue. Milosevic: Because you were involved in the murder of Arkan? K-2: Yes. It took several more questions about his current place of residence and employment before the witness himself advised the court that he could no longer answer publicly without revealing his identity. The court belatedly closed the proceedings. While Milosevic proved himself capable of relevant cross-examination, his intentional attempt to expose K-2’s identity to those from whom he was in grave danger showed that the accused continued to play by his own rules. As his international interlocutors had learned long ago, Milosevic’s smooth, sophisticated demeanor covered an endemic ruthlessness. His entire history of achieving and holding power attested to it. Of greater concern was the effect that his exposure of protected witnesses had on potential witnesses and thereby on the conduct of the trial itself. In the Croatia phase of the case more than half the witnesses testified under full or partial protective measures. This reflected the degree of intimidation and fear in a region sometimes compared to gangland Chicago in the 1930s. The prosecution feared that the exposure of witnesses would lead to refusals to testify or a decision by the trial chamber to close more sessions to the public. While both these things happened, no one expected the assassination in March of Serbia’s prime minister on a street in Belgrade, nor the repercussions for the trial. Soldier of Fortune Caught in Lie

Like K-2, the former paramilitary involved in killing his boss, a number of prosecution witnesses were shady characters. This was to be expected of a conspiracy requiring thousands of people committing countless crimes to T h e E x e r c i s e o f (D e Fa c t o) P o w e r   171

carry it out. While a confessed murderer has credibility problems, often he also has the best evidence of the crimes and their linkage to others in the conspiracy. In criminal cases prosecutors, defense attorneys, and judges routinely deal with this, relying on the judicial process (whether adversarial or inquisitorial) to expose the truth.14 Dragan Vasiljkovic, known as Captain Dragan, was another of these witnesses. The notorious leader of a ruthless band of paramilitaries who caused mayhem and murder in Croatia, Vasiljkovic presented a major challenge for the prosecution in court. He also provided definitive evidence that Milosevic was in charge of paramilitary units sent to fight in Croatia through the SDB head, Jovica Stanisic, and his deputy, Franko Simatovic, who reported directly to Milosevic. Originally from Australia, Vasiljkovic was a short, wiry soldier of fortune with long, blonde hair who reportedly flew his private plane from the United States to Rijeka on the Dalmatian coast, gaining some notoriety for the exploit. He got his education about the conflict in Croatia in a bar in Belgrade, where he was told that Croatian Ustasha were attacking Serbs and was asked to help. On his first trip to the Krajina he passed barricades manned by scruffy-looking, ill-equipped, sometimes drunken men with weapons to match. His six years in the Australian armed forces had given him the idea that he could assist by training and organizing these men into a professional defense force. The head of the Serbian Krajina fighting forces, Milan Martic, top cop in the Krajina, was not interested. Vasiljkovic returned to the United States, but a news broadcast of army tanks rolling through the streets of Belgrade to disperse an opposition demonstration on 9 March 1991 called him back to his ancestral home. His efforts to lend a hand met with a little more success when Franko Simatovic asked him to write a training manual for forces in the Krajina. Simatovic cautioned him not to tell anyone. “He said if his bosses were to learn about it, he’d probably be arrested and dismissed.” At the time Milosevic and Serbian authorities were secretive about their support for the Krajina Serbs in their conflict with Croatia. Eventually Captain Dragan headed for the Krajina on his own, with Simatovic accompanying him. General Vasiljevic, chief of military intelligence, had testified that the SDB sent him to the region. According to Captain Dragan, he organized a training camp and established a professional training program. The witness said he adopted the firm position that any Serb fighting in the Krajina had to be under control of the SDB, police, or JNA. He testified that this remained so throughout the wars and added, “I am 172  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

angry that today some people are trying to wash their hands of people who died believing they were serving [these institutions]. All people had to be under the command of the army or the police. No unit could have operated separately.” Vasiljkovic’s testimony confirmed that the SDB was involved in the Krajina fighting in a major way. He claimed that four people controlled actions in the Krajina throughout the war: Franko Simatovic, Dragan Filipovic, Milan Radonic, and Jovica Stanisic. All were SDB members, with Stanisic at the top and at Milosevic’s right hand. On one occasion Stanisic came to the Krajina and congratulated Captain Dragan on the success of his training. Later he gave him a pistol in recognition of a successful military operation. Despite his success in training Serbian fighters in the Krajina, Captain Dragan ran into trouble with the politicians. He clashed with Milan Babic and was summoned to meet Stanisic in Belgrade. The SDB chief told him, “almost apologetically,” that there was “some very dirty business going on in the Krajina”; Vasiljkovic had probably “gotten unconsciously involved in politics and shouldn’t go back.” Stanisic added that he would have to stop Vasiljkovic if he did go back. The prosecutor, Dermot Groome, asked if Vasiljkovic had inquired who was forbidding him to return. He replied that he had, and that Stanisic answered, “In principle, I can’t tell you very much. This is coming from the top.” “He either meant the Minister of the Interior or President Milosevic,” Captain Dragan explained. Stanisic sent Vasiljkovic to Tito’s villa in Bor, in the company of two SDB agents. After seeing Babic on TV calling him a mercenary who had done his job and been sent on his way, Vasiljkovic realized that he had been decommissioned. He activated a prearranged signal with some friendly SDB officers who helped him return from exile and then gave a press conference at which he “stated publicly that he was working for the Serbian MUP,” according to the prosecution’s pretrial brief. After a failed attempt to organize a special unit with Simatovic, Vasiljkovic turned to work on Captain Dragan’s Fund, which he said he created to help widows, orphans, and others hurt by the war. He was pulled into political affairs again by law students in Belgrade whom Vojislav Seselj, then a member of Parliament, had threatened with a pistol.15 His attempt to help them provoked a visit from Filipovic and Radonic. “They took me to a raft near the river and explained it was very difficult for them to say what they were going to say. I had entered waters I didn’t understand. They told me to leave Yugoslavia. They had accepted the assignment because if someone else had, it would have been done differently. I understood this was a threat.” They T h e E x e r c i s e o f (D e Fa c t o) P o w e r   173

offered to pay him (he requested $250,000) to “disappear” for five years and agreed to meet him the next day. When he asked where the directive came from, he was told it was “coming from the top” and “no one can have any influence in respect to that decision.” “I had to leave the country.” A journalist friend persuaded Vasiljkovic to talk to the JNA counterintelligence chief, who cautioned that he might well end up dead in a mafia-like encounter outside the country if he went through with the SDB proposal.16 The JNA officer advised Vasiljkovic to tape-record the next conversation with the two SDB agents. He did, and gave the tapes to the JNA officer, who showed them to Stanisic as a way of threatening to expose the SDB’s involvement if anything happened to him. He remained safely in the country. Vasiljkovic gave the prosecution a documentary goldmine of 67,000 records from Captain Dragan’s Fund, which awarded monetary compensation to citizens of Serbia who fought and were injured or killed in the Croatian and Bosnian wars. To qualify, a veteran or his survivors completed a form identifying their military unit and specifying the nature of their physical disability and how, where, and when it was caused. The form had to be certified by the soldier’s former commander. Without realizing their relevance, Captain Dragan dutifully authenticated the records. The data placed thousands of Serbian citizens fighting on Croatian and Bosnian soil, many under the direction of Serbian officers. The evidence cut at the heart of Milosevic’s defense that Serbia was not involved in the Croatian and Bosnian conflicts. When the relevance finally dawned on Captain Dragan, he shouted at the prosecutor, “You tricked me!” Another startling piece of evidence linking Milosevic to fighters in Croatia also came in through Captain Dragan. It was a fifty-minute video of a Red Beret celebration in 1997, starring a complete lineup of the SDB, including veterans of the Krajina trained by Captain Dragan. The star of the show was the president of Serbia, Slobodan Milosevic, who is seen thanking Red Beret members for their contributions. The SDB special operations chief— and Captain Dragan’s close friend—Franko Simatovic announces that five thousand members of the Red Berets fought in the Krajina. He further discloses that they had twenty-six training centers in Croatia and Bosnia. At one point Stanisic turns to the accused and says, “Everything we have done so far, we did under your control and with your authorization.” It could not have been any plainer than that.17 Captain Dragan’s first day of testimony was as significant as it was dramatic. It unequivocally tied the SDB to the war in Croatia, countering Milosevic’s defense that Serbia was not involved. It established that all Serb fight174  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

ing in the Krajina was organized, coordinated, and under the control of the army, SDB, and police. When Vasiljkovic took the stand for his second day of testimony, a sea change occurred in his outlook—and his memory. Where he earlier testified that he had adopted a firm position requiring any Serb fighting in the Krajina to be under the control of the SDB, police, or JNA, under cross-examination by Milosevic, who affectionately called him “Kapitane,” he said he had meant the Serbian Krajina Security Service, the army of the Serbian Krajina, and the Krajina police controlled by Milan Martic, not that other Serbia controlled by the accused. In an increasingly cordial exchange with Milosevic, Vasiljkovic denied ever being employed by the SDB; he went to the Krajina on his own initiative. He was the sole commander of the Golubic training center, appointed by Martic and Babic. His friend Simatovic had nothing to do with it. After testifying the day before to his close working relationships with several SDB agents, he now claimed that these had been informal contacts, made without the knowledge of their bosses. The four SDB men he named as having control in the Krajina (Simatovic, Filipovic, Radonic, and Stanisic) he now said were the only SDB personnel ever to visit the Krajina when he was there, and then only for a few days merely to gather intelligence. Where the day before he testified that he had been ousted from the Krajina by Stanisic, conveying an order “from the top,” the new day brought a new explanation. When he said that Stanisic had “relieved him of his duties,” it did not mean that Stanisic had appointed him. “Even Patriarch Pavle could have relieved me,” he told the court. In a fascinating tour de force, Milosevic suggested that Babic was the one who expelled Vasiljkovic from the Krajina. Vasiljkovic responded as if a hero were being redeemed: Vasiljkovic: My feeling was that Babic was superior to you. If you’d had authority, both Frenki and I would have stayed on. . . . I thought Babic called you, you called Stanisic and he told me not to go [back to the Krajina]. Milosevic: Could you draw the conclusion, precisely because of pressure over there, that no one ordered it, but Stanisic wanted to protect you from the conflict between Martic and Babic? Vasiljkovic: I didn’t think of it along those lines, but there’s a certain logic to it. Showing concern for a flamboyant paramilitary who might have been a bit too uppity and vocal was an odd role for Milosevic’s security chief. T h e E x e r c i s e o f (D e Fa c t o) P o w e r   175

The witness had already testified about his clashes with Babic, which Milosevic would have known about at the time they occurred. Milosevic continued spinning out the tale, suggesting that Babic wanted to denigrate Vasiljkovic, who was a hero at a time when Babic was under criticism. By this time cross-examination had become a tête-à-tête between long-lost friends. Vasiljkovic told Milosevic he had really been bothered by the 180-degree turn in how he was treated after defeating a large Croatian force at Glina. Instead of getting the decoration he expected, he was replaced. “I couldn’t imagine I wouldn’t get your support and that of the JNA against Babic, so I blamed you.” He expressed sympathy for Milosevic, who he said could not win either way and in whose shoes he said he would not like to be. The interplay between Milosevic and Vasiljkovic was a soap opera in progress. One almost expected to hear soaring background music, as the son discovered that his father really did love him and had been done in by an evil uncle. This metaphorical father-and-son team spent a little while longer trashing Uncle Babic before Milosevic asked Vasiljkovic to deny another part of the statement he had given to prosecution investigators. The statement read, “In my opinion, the war effort [in Krajina] was financed by the Serbian government but I have no evidence.” The audience sat expectantly, wondering how the younger man was going to explain the statement in a way allowing him to stay in the older man’s good graces. “I don’t remember saying this at all,” Vasiljkovic exclaimed, though he had to admit that his initials were on the page, signifying that he had agreed with it at one time. “I don’t know how it found its way into my statement.” Milosevic solicitously replied, “Captain, you’re not the first witness who finds something in his statement he didn’t wish to say.” Vasiljkovic was left to respond he was sorry he signed the statement; he would not have said it; it was just a mistake; and in any event “his opinion” should not count. The witness responded to the remainder of Milosevic’s cross-examination in a similar vein: “He had no evidence Milosevic ever committed or was involved in any crime and if he had, he would have done everything in his power to have him dismissed.” “Serbia never provided any financial support to the Krajina Serbs for their war effort.” “The videotape of the Red Berets’ 1997 celebration, played in court and showing just about everyone who was anyone in the SDB, was not what it appeared to be.” “Frenki had merely usurped the name ‘Red Berets’ for a unit he was forming so that it might prove more attractive to young recruits by appearing to have a heroic tradition.” Similarly, “Frenki’s speech at the celebration intentionally exaggerated the size and influence of the Red Berets to impress the president.” “It must 176  T h e E x e r c i s e o f (D e Fa c t o) P o w e r

have created a great impression on you, Mr. President,” Vasiljkovic addressed the accused in court. When it was time for reexamination, Dermot Groome, the prosecutor handling Vasiljkovic, found himself faced with every lawyer’s nightmare: a witness who disavows his former statements and key pieces of his testimony. While a prosecutor is allowed to reexamine a witness to rehabilitate him after cross-examination, this was not a situation where the witness needed (or wanted) rehabilitating. He had simply changed his story and his allegiance. Any opportunity to clarify his statement would result in his repeating what he had said on cross-examination. In such cases common law rules allow the prosecutor to ask the court to declare the witness hostile. If the court does so the prosecutor can cross-examine his own witness and use techniques designed to show that the witness is lying. A prosecutor does not do this unless it is absolutely necessary, since it undermines the credibility of his own witness. Yet sometimes it is the only way to provide the court with enough information to properly judge the evidence. The problem for Groome was that the tribunal was not bound by common law rules. Comments from the bench indicated that at least one of the judges did not favor adopting a hostile witness rule for the ICTY. Groome trod a fine line by stating that he was not asking the witness to be declared hostile, nor was he seeking to impeach the witness for anything contrary he said on direct examination. He was “simply trying to explore the contradictions.” The judges agreed that such exploration was necessary for them to determine what was true. Groome proceeded with a short, masterly reexamination of Captain Dragan. He did not discredit all the witness’s testimony. Rather, he demonstrated why the witness might have disavowed it under cross-examination. First the prosecutor reviewed the witness’s original testimony on several key points (changed on cross-examination), specifically Vasiljkovic’s statement that the SDB had actively supported the fighting in Croatia. When Vasiljkovic continued to waffle, Groome alternately read from, and asked Vasiljkovic to read from, his signed statement to the prosecution, the transcript from his direct examination, and an interview with him published in the Serbian weekly Vreme. At times Vasiljkovic tried to explain the discrepancy. Occasionally he acknowledged that his original statement was true, based on what he knew then. Sometimes he just said that the original statement was false. Groome elicited his agreement that the statement being read out was the original he signed in 2001. This did not stop Vasiljkovic from accusing the prosecution of changing the statement and tricking him. At T h e E x e r c i s e o f (D e Fa c t o) P o w e r   177

one point the prosecutor asked if Vasiljkovic was saying the document was forged. “It is absolutely misinterpreted. Yes,” he responded. After giving the witness the opportunity to comment on his previous testimony that he and the Red Berets were linked to the SDB, Groome inquired about threats made to him—back in 1991 and recently. Groome read his testimony about the meeting with two SDB agents soon after the incident with Seselj and the law students. According to Vasiljkovic’s statement, “They basically told me the time had come to go away from the Balkans. They suggested my life was in danger. . . . The order came from the top. By this, I knew it came from President Milosevic.” Vasiljkovic acknowledged that this was true. Groome: You believed Mr. Milosevic had given an order to get you out of the country and if you didn’t go you’d be killed? Witness: That’s what I thought at the time. The prosecutor followed with questions about recent threats which had caused the witness to request that his contacts with the prosecution be kept strictly confidential. One was a text message recorded on his telephone that came from someone with fifty-eight registered telephone numbers, an indication of a caller engaged in clandestine activities. Groome asked if Vasiljkovic thought the source of the threat was a private individual or rather the SDB. Vasiljkovic said no, it was not the SDB, he had suspected Seselj, but “it turned out to be something else.” He did not say what. Groome showed that the witness had lied when he said, in responding to Milosevic, that he had only begun talking with the prosecutor after the FRY passed a law on cooperation with the tribunal. The law was passed in April 2002, while Vasiljkovic’s first statement to the prosecutor was in 2001. Apparently he did not want someone to know how long he had been in touch with the ICTY. The coup de grâce came in Groome’s final series of questions. Vasiljkovic acknowledged that Franko Simatovic was a friend. He admitted that he had discussed going to the tribunal with him shortly before leaving Serbia. Groome followed up: “Have you had any communication after arriving here? Have you had any connection with Frenki Simatovic or anyone from the SDB?” Vasiljkovic replied: “Yes, Frenki.” He then made the shocking admission that he had discussed his testimony with Frenki after he had begun giving it, though only for “20 seconds.” This was strictly prohibited by ICTY rules. The prosecutor recalled his having said earlier in the day that he had discussed the videotape of the Red Beret celebration, shown in court, with

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Frenki. When the captain denied that this discussion had taken place recently, Groome reminded him that he also testified to not having seen the videotape before arriving at the tribunal. While Vasiljkovic tried to say that he had seen parts of the videotape before coming, it was a lame response to the dramatic admission he had made under Groome’s questioning. It appeared that elements of the SDB, through Vasiljkovic’s close friend Frenki, had renewed their contact with Captain Dragan. If true, this explained the dramatic change in Vasiljkovic’s testimony from one day to the next. What was less clear was whether the SDB, if it was the source of a threat, was protecting its own or Milosevic. It was obviously attempting to discredit the trial. The dramatic turn of events exposed witness tampering, whether Vasiljkovic was threatened or cajoled to change his testimony. The court could have charged him with contempt for violating its prohibition against discussing his testimony with anyone between the time he took the stand and the time he completed his testimony. It might also have initiated proceedings against him for giving false testimony or against others for interfering with a witness. These were very serious matters that had the potential to undermine the integrity of the judicial process. Under ICTY rules a witness can be indicted and prosecuted for giving false testimony, with a potential sentence of 100,000 euros and seven years in prison.18 The same is true for anyone who “threatens, intimidates, . . . or otherwise interferes with, a witness.” For whatever reason, the court took no action against Vasiljkovic. While events surrounding Dragan Vasiljkovic’s testimony had the potential to harm the integrity of the process under which Milosevic was being tried for war crimes and crimes against humanity, they did not do so. In large part that was due to Dermot Groome’s reexamination and to the trial chamber for permitting it. Had the reexamination not been allowed or not been conducted so brilliantly, those who sought to manipulate and discredit the tribunal would have furthered their cause. Still, one failure did not deter them from future efforts to undermine the trial. An Assassin’s Bullet

Shortly after Vasiljkovic left The Hague, news media in Belgrade reported an attempted assassination of Prime Minister Zoran Djindjic of Serbia. The driver of a truck swerved into his lane to cause a head-on collision. The modus operandi fit that of a prior incident involving another longtime opponent of Milosevic, Vuk Draskovic. While Draskovic escaped, his brother-in-law and

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two bodyguards were killed. Djindjic, a reformer who was responsible for sending Milosevic to The Hague, also escaped injury and the truck driver was arrested. As it turned out, the unsuccessful attempt on the prime minister’s life was a practice run. Within two weeks Djindjic would be dead from an assassin’s bullet. The news of Djindjic’s death rocked the ICTY as well as Belgrade. Milosevic disappeared from court for two weeks, ostensibly to stabilize his blood pressure. According to rumors he used the time to reorganize his defense in light of massive arrests in Belgrade of people linked to the SDB. An arrest warrant was issued for his wife, Mira Markovic, in which he was also named, for ordering the murder of Ivan Stambolic, Milosevic’s former mentor, whom he overthrew in 1987. Stambolic went missing in 2000 under highly suspicious circumstances.19 During the massive arrests and interrogations the police learned the location of Stambolic’s body and how it got there. Rade Markovic (no relation to Mira), former head of the SDB and Stanisic’s successor, was implicated in Stambolic’s murder. Markovic, who testified earlier, was serving time for his involvement in the attempted assassination of Draskovic. Before an arrest warrant could be served on her, Mira Markovic fled to Russia, as did her son, Marko Milosevic, who faced charges for assault in a separate incident. At least for a while Milosevic’s main sources of support were disrupted: elements in the SDB, and his wife. Despite Milosevic’s obsessively close relationship to Mira, he soldiered on without her regular visits. She was likely able to reassure him through mutual contacts—and to encourage him to continue building the Milosevic myth. But he never saw her again. Djindjic’s death also affected the prosecution, since he was a prime source of support for the tribunal in the post-Milosevic Serbian government. The FRY’s president, Vojislav Kostunica, opposed the tribunal and refused to cooperate. Goran Svilanovic, FRY foreign minister, and others in Belgrade attempted to use Djindjic’s assassination as a reason why they could not cooperate, suggesting that he was killed for his cooperation.20 In any event Del Ponte had lost an important ally. From this point on she engaged in a continuous fight (or, as she says in her book, “confrontation”) for access to critical documents, notably records of the Supreme Defense Council that the government refused to release to prevent incriminating evidence from getting to the International Court of Justice in Bosnia’s case seeking damages from Serbia for genocide.21 The fallout from the assassination provided some benefits to the prose-

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Mira Markovic, Serbia’s Iron Lady Milosevic’s relationship with his wife, Mira Markovic, was the most important and consistent in his life. Even as high school sweethearts the two were an entity unto themselves, little influenced by anyone else but tremendously influenced by one another. It was said that Mira was the strong partner, her husband dependent and devoted. What is clear is that she was involved in every major decision in his life, including those in the political arena. She was the power behind the throne and Milosevic’s chief adviser throughout his political career and his life. Markovic, like Milosevic, reveled in power. She exercised it through him and in her own right through the political party she formed after the collapse of the League of Communists, the Yugoslav Left ( yul ). While Milosevic assumed the mantle of nationalism, Markovic retained her attachment to communism. Yet ideology for both was trumped by obtaining, holding onto, and extending personal power. Over the years Markovic’s power increased as she gained control over state businesses, eventually holding a monopoly over all major business transactions. She surrounded her husband with her own loyalists, exercised power to hire and fire officials, and finally infiltrated yul operatives into all state institutions. Not only was she a suspect in the murder of Ivan Stambolic; the media also linked her to a string of other unsolved political murders. Markovic’s and Milosevic’s involvement with each other was called “obsessive” and “unnatural.” This was evident at his trial, when, as Louis Sell writes, “Until Milosevic’s imprisonment in The Hague, they had never been separated since their youth, either romantically or politically. The only portrait in Milosevic’s private office is of his wife, and when the couple are together, their affection for one another is obvious.” Over the years the couple grew more and more isolated. Observers say that they lived in a mutually reinforced fantasy world, cut off from reality, which ultimately led to Milosevic’s downfall as he failed to take seriously the degree of discontent his policies had wrought in Serbia. Milosevic’s final gamble, in which he risked and lost his life, was an attempt to get to Mira, who was living in selfimposed exile in Russia.

cutor. The long-delayed Law on Cooperation with the Tribunal was finally passed, allowing Serbian officials to testify before the tribunal without fear of being prosecuted in Serbia for revealing state secrets. As a result Zoran Lilic would give critical evidence, including evidence on released minutes of the SDC.

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Wa r a n d At t e mp t s at P e a c e Chapter 8

Attacking the World’s Heritage

Dubrovnik is a special place not only to Croats and former Yugoslavs but also to people from around the world. An historic and picturesque walled city on the idyllic Dalmatian coast, it has protected status as a United Nations World Heritage Site. On 23 October 1991 an army of Serbs and Montenegrins began a sustained attack on the Old Town and the people living there. From October to December the JNA hit the city with 1,056 shells. The worst shelling, on 6 December, occurred the day a ceasefire was to take effect, killing nineteen civilians and wounding sixty more, destroying nine buildings, and causing substantial damage to the ancient stonework of many others. The JNA brought a force of seven thousand and considerable arsenal to the operation, attacking from land, sea, and air. The entire area’s defenders totaled 670, armed with light weapons and four captured cannons with improvised firing pins, good for two firings each. Trained defenders of the Old Town numbered fewer than fifty. Yet somehow the little David beat Goliath. Despite its superior forces and firepower and a three-month siege, the JNA was never able to take the jewel of the Adriatic.1 Petar Poljanic, former mayor of Dubrovnik, described the attack: “My impression is that [specific] buildings were not targeted. The whole of the Old Town was shelled. On December 7th when I climbed the walls, I could not find a single roof on which a shell had not fallen or been destroyed by [shells] falling next door. The target was the Old Town itself.” Poljanic reviewed a long list of people killed during the shelling, identifying friends and people he had helped to bury. He testified that he was informed of each death shortly after

it occurred. He could not find a single soldier among the dead. There were no military installations or artillery units inside the Old Town, according to Poljanic. “We were not in a position to provoke them. . . . They were the third or fourth strongest army in Europe and we numbered less than 100 men.”2 Poljanic testified that he received a pledge from Admiral Krsto Djurevic: “While I’m commander of this district, you can rest assured that not a single shell will fall on Dubrovnik.” The admiral was arrested by the army on 4 October, released within a few days, then killed. Poljanic learned from one of the men who carried the admiral’s body as he was dying that his death was likely an inside job by the JNA. The assault on Dubrovnik was part of a larger JNA campaign beginning in mid-September 1991 to take control of the region between the border of Montenegro and Karlobeg (along the Adriatic mountainous border of the Krajina), the far border of the new Serbian state that Milosevic allegedly wanted to create. According to General Nojko Marinovic, head of Dubrovnik’s defense, the plan was to attack southern Dalmatia with forces coming from two directions: Montenegro, and Sarajevo and Mostar. After southern Dalmatia was taken Serbian forces would “move in a northwesterly direction until they joined the SAO Krajina forces moving southeasterly.” Even as Poljanic met with the mayor of nearby Trebinje, who assured him that Serbs had no territorial ambitions beyond the Prevlaka Peninsula, six thousand JNA troops were massing in Trebinje.3 Within days the JNA launched a coordinated, all-out assault against the Konavle area south of Dubrovnik and the Dubrovnik municipality. They cut water, electricity, and telephone lines and destroyed the television station. The forces took over Cilipi airport ten miles south of the city and cut off access by land and sea. Poljanic declared: “Just then we were probably the largest prison in the world.” That circumstance continued during much of the siege, with citizens unable even to tap the vast resources of the sea for water, fearing that they would be killed by snipers.4 In the Konavle area south of Dubrovnik, JNA troops rolled relentlessly through villages, destroying one after the other. The witness described their fates: Brgat, destroyed; Cilip, destroyed; Dubravka, destroyed; Gruda, destroyed, terribly; Slano, a beautiful place in a little bay, destroyed; Popovici, largely destroyed; Donja Luta, destroyed. And on and on. At the end of this dirge the prosecutor asked, “Did any of the destroyed villages have military installations of the Croatian Army?” Poljanic replied, “As far as I know, not a single one.” With isolated exceptions the JNA met no resistance from the unarmed villagers and suffered no casualties. War a n d At t e m p t s at P e a c e   183

Most of the Konavle villagers fled to Dubrovnik, northern Dalmatia, and the islands. Those who escaped to Dubrovnik did not find safety, as the JNA shelled the hotels where they were housed. JNA troops, in particular the Montenegrin contingent, looted private homes, hotels, and even boats in the harbor, as Nikola Samardzic also testified. The prosecution presented a twenty-eight-page statement by General Marinovic that corroborated significant testimony about the JNA’s Serbianization and its siege of Dubrovnik. In 1990 the general was a dedicated and outstanding career officer, having served in the Yugoslav army for almost twenty years. He believed in the JNA as the embodiment and protector of a socialist and multiethnic Yugoslavia. While attending the war college in Belgrade, however, he had the first intimations that the JNA was changing. More than once he heard Serb officers singing Serbian nationalist songs, something that would formerly have been severely punished. When he complained to a superior, he was brushed off. Back in Trebinje, where he was stationed after his stint at the war college, General Marinovic became aware that “certain elements within the JNA were involved in large-scale arms smuggling.” In operations orchestrated by KOS, the army was moving truckloads of weapons from arms depots and distributing them to the Serb population in Croatia and Bosnia. At the same time they made weapons inaccessible to territorial defense organizations in predominately Croatian and Muslim areas. The general asserted that such a large-scale operation could not have occurred without “the knowledge and cooperation of high-ranking officers.” These events, as well as JNA involvement in military actions in Pakrac, Plitvice, Borovo Selo, and other places, led the general to do some soul searching. “It caused me unbelievable turmoil. I had invested my entire adult life in the army and I had an outstanding career. . . . I had very much respected the JNA as an institution and I think my loyalty to it prevented me from seeing clearly the path that the army was taking.” As events progressed denial became less possible. “I had decided that I would stay in the JNA as long as the work I was doing was honorable and as long as I felt the institution was maintaining its honor. I had begun to conclude that that period was quickly coming to an end.” On 17 September 1991 the general sent a telegram to his commander, Admiral Krsto Djurevic: “I cannot understand the direction that the JNA is now taking and I therefore ask you to relieve me of all of my duties and responsibilities.” Djurevic sent for him. The admiral said that the “guys above,” meaning those in Belgrade, had

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directed him to persuade Marinovic to retract his resignation. Indicating that there was a listening device on his desk, Djurevic moved away from it and lowered his voice. “Do you really think I would attack Croatia? My wife is a Croat. My children were born and educated there and work there still.” “As he said this,” General Marinovic wrote, “I could see tears in his eyes.” Unable to convince Marinovic, the admiral hinted that he should be careful when returning to Trebinje, a hint enabling Marinovic to give the unknown listeners false information. Marinovic later learned that JNA officers had been instructed to obstruct and if necessary kill him. “I thanked him for his concern and we said our good-byes. As we parted, I noticed that he was crying.” Djurevic was killed under suspicious circumstances a few weeks later. Marinovic wrote: “I am convinced that he was killed by elements within the JNA—specifically KOS—because of his opposition to the Dubrovnik ­operation.” The second part of General Marinovic’s testimony concerned his leadership in Dubrovnik’s defense, after resigning from the JNA and offering his services to the Croatian army. In his statement he wrote: “I was really shocked at how disorganized and unprepared they were for anything that might happen. . . . [I] quickly formed the opinion that there was no effective defense plan for Dubrovnik.” With few resources, he set about making one. While the general gathered what forces, equipment, and weapons he could, and devised a strategy to defend southern Dalmatia, he was hampered by President Tudjman’s order in August 1991 “that no overt defensive measures were to be taken in the region” of Dubrovnik. The order was based on Milosevic’s assurances that the JNA would not attack Dubrovnik, which “Tudjman had taken . . . to heart,” Marinovic stated. Croatia’s defense minister, Petar Kriste, also testified that Tudjman refused to let Croatia prepare a military defense based on assurances from the federal defense minister, Veljko Kadijevic, and likely from Milosevic, that the JNA would not attack Croatia. The JNA’s three-month siege of the Old Town began in October 1991. General Marinovic had only thirty-seven soldiers with sufficient training and experience deployed around the Dubrovnik municipality, while the JNA’s troop strength was about seven thousand. The JNA anticipated an easy campaign, taking southern Dalmatia in a matter of weeks. When those weeks stretched into months and casualties mounted, their troops grew demoralized. Nor had the JNA accounted for the international outcry over unprovoked attacks against a UNESCO heritage site. And, Marinovic claimed, “their own propa-

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ganda boomeranged on them.” Having told their soldiers that thousands of Croatian Ustashas and foreign mercenaries were inside the walled city, “they became extremely cautious as they moved closer and closer to the city.” The JNA justified firing on the Old Town as defensive, claiming that it was responding to provocative acts by the Croatians even as they sought international sympathy. Marinovic wrote in his sworn statement, “I can say with certainty that we never fired from the Old Town, never conducted any military operations there, and never gave the JA [JNA] any reason to attack it.” In response to Kadijevic’s frequently cited claim that the Old Town was not shelled, “but that it was actually the Croats burning old tires,” Marinovic wrote, “[It] is so preposterous that it doesn’t even deserve a response. For anyone who entertains such ideas, I would suggest that they watch the videotapes of JA missiles hitting the Old Town.” The general left little doubt that the JNA attack on Dubrovnik was planned at the highest level. He provided convincing testimony that there was no military justification for the attack and siege. The assault on the entire region of southern Dalmatia was an unprovoked, aggressive attack against a largely civilian population. During cross-examination Milosevic produced an order from the JNA general staff, dated 1 October 1991: “Do not take Dubrovnik. Dubrovnik should not be occupied or bombed from land, air, or sea.” Marinovic said that the order was to be implemented if Dubrovnik accepted an offer to become an autonomous republic within an enlarged Serbia. It did not. Milosevic made no more headway on other points of defense. When Nice asked on reexamination why Dubrovnik, which was so lightly defended, did not fall, the general replied: “Why did it not fall? Well, in my opinion, because we had the strength which opposed force, and the strength of patriotism. We were defending our families and our homes. And the other side was destroying and looting. . . . And now that it was necessary to lose your lives to looting, they would not do that. They only wanted to loot where they could do so safely.” Another witness, Ivo Simunovic, one of Dubrovnik’s defenders, agreed. When Milosevic asked him the same question, he replied, “[The JNA] had strength but no bravery.” Dubrovnik, perhaps because of its historic and symbolic significance and its totally wanton destruction, was given twelve counts in the indictment. For what happened in Dubrovnik Milosevic was charged with murder, willful killing, willfully causing great suffering, cruel treatment and attacks on civilians, unlawful confinement, imprisonment, torture and inhumane acts,

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deportation and forcible transfer, and the wanton destruction and plunder of property from 1 October to 7 December 1991. In war, nothing can be more tragic than the death and brutalization of innocent people. Yet something also outrages the conscience when a symbol of a people’s heritage (and in this case the world’s heritage) is targeted for destruction. It threatens a sense of who we are in time, where we came from, what good we are capable of, and what we can leave to future generations. Vukovar and the Ovcara Massacre

While the world’s eyes were on Dubrovnik, the Yugoslav army laid siege to another lovely old Yugoslav city for three months. Vukovar was reduced to rubble, while Dubrovnik was mostly preserved. What happened after the siege ended—a massacre of 264 people captured from the local hospital— generated additional charges against Milosevic. The prosecution related the events through a hospital director, two survivors, a JNA officer, and a Serbian journalist. Their testimony described one of the ugliest chapters of the Croatian war. By late August 1991 the Serbianized JNA launched a major attack in an arc across Croatia, from Gospic in the south, north to Okucani, and ending in Vukovar in Eastern Slavonia. Situated at the confluence of the Rivers Vuka and Danube, Vukovar, a cultural treasure of medieval architecture, lay on the border between Serbia and Croatia and was critical to controlling the region for the JNA push toward Zagreb. Two weeks after the JNA attack Croatia responded, sending its National Guard (ZNG) to surround JNA barracks throughout Croatia. It was an excuse for Belgrade to lay siege to Vukovar, a mixed Croat and Serb city, with Croatians having a slight majority.5 The only way in or out was through a path in the woods. The siege lasted three months despite the JNA’s overwhelming force. During that time 2,300 civilians died and thousands more were injured. C-57, a JNA officer who served in Vukovar, described the poor state of JNA forces, prompting the use of paramilitaries. He told of growing antiwar sentiment and widespread resistance within the JNA.6 When a general mobilization order was issued, “hardly anyone responded; the call up had almost failed. There was an anti-war feeling among 90% of the reserve force, regardless of their nationality,” C-57 said. Parents and relatives of the reserves (constituting 70 percent of the force) gathered around the barracks to prevent their children from taking part in the operation. The military outwaited the relatives and the battalion left for Croatia. When they arrived at the River

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Danube the troops were told to be prepared for a serious clash, as three thousand Croatian MUP forces awaited them on the other side. A glance through binoculars, however, showed C-57 that “there was no way that 3,000 people could have been there.” Nor did the Croats provoke the JNA troops in any way, he said. The JNA’s own actions, however, provoked reservists to rebel on several occasions. “It was a sort of passive mutiny. They expressed their revolt by abandoning combat vehicles, discarding weapons, gathering on some flat ground, sitting and singing ‘Give Peace a Chance’ by John Lennon. They asked to speak to the battalion commander personally or some other, even more superior, commanding officer in order to impart to them that they did not want to wage war and that they wanted to go home. . . . During that month [July 1991] we had 5–8 movement orders that were not carried out.” Resistance among reservists resulted in an unsuccessful assault on Borovo Naselje when “an entire Novi Sad infantry battalion fled their line of attack,” C-57 told the court. This inspired other reservists. “Around 20 October 1991, due to the incident and the general mood, the reservists organised themselves in platoons, threw away their personal weapons on a pile and started deserting the units in the whole battalion. They were leaving on foot for Vojvodina across the Bratstvo i Jedinstvo [Brotherhood and Unity] Bridge in Erdut.” The JNA replenished the command with two busloads of volunteers “who joined the JNA by enlisting through SRS [Serbian Radical Party] branches. . . . [T]hey spent seven days at a JNA barracks in Novi Sad. There they were issued with JNA uniforms and had a brief training.” According to C-57, “The replenishment of the unit with troops through the SRS was the result of very close cooperation between the SRS and the JNA leadership.” The so-called troops acted more like thugs. Arkan and his troops also “operated as part of the JNA, under the command of the Novi Sad Corps commanding officers.” The witness’s assertion was corroborated by a videotape of the Novi Sad Corps’ commanding officer at a press conference, in which he praised Arkan and his forces for taking Vukovar when his own men refused to attack. “The greatest credit for this goes to Arkan’s volunteers! Although some people accuse me of acting in collusion with some paramilitary formations, these are not paramilitary formations here. They are men who came voluntarily to fight for the Serbian people. We surround a village, he dashes in and kills whoever refuses to surrender. On we go!” C-57 also testified that the order to incorporate Arkan’s

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men in a JNA tactical group for attacks had been made at the corps command level. The SRS volunteers were “people from the margins of society,” according to the witness. Not only was their training abbreviated but they were not subject to regular military discipline. They looted and committed atrocities with impunity. In one case, “One of the SRS volunteers, Mile Ristic, cut off the ears of a Croatian prisoner in Luzac and brought them impaled on a stick to where the company was positioned. He was very proud of this. . . . One active-duty soldier . . . started vomiting when he saw the cut-off ears, and the rest of the radicals present there laughed at him because of this. I did not inform anyone about it because I had already received instructions earlier not to restrain them.” His superiors were nearby and did not intervene. Even for regular troops, orders to abide by the Geneva Conventions were at most written but not distributed. When the prosecution investigator asked whether the troops had been “instructed during these briefings to respect the Geneva Conventions and the Laws and Customs of War,” C-57 replied, “I can definitely say that we were not.” Based on his experience “It can be inferred that the Geneva Conventions and the Laws and Customs of War were not observed during combat operations in Eastern Slavonia.” C-57’s testimony was confirmed by a letter dated 13 October 1991 from the regional JNA security chief Milenko Djokovic to the Defense Ministry’s security administration: “In the greater area of Vukovar, volunteer troops under the command of Arkan and Kum are committing uncontrolled genocide and various forms of terrorism.” Whether Djokovic received a response is unknown, but Arkan remained throughout the Vukovar siege and, as noted above, he and his paramilitaries were credited by the JNA commander with winning it.7 Not content with indiscriminately shelling a city, the JNA targeted the Vukovar hospital, according to Dr. Vesna Bosanac, hospital director throughout the siege. Its roof was marked with a large red cross; another red cross was made in the yard. For an army that showed little concern for the rules of combat, this was an invitation. The hospital was shelled and bombed daily. Yet it was a working hospital, with an ethnically diverse staff that treated JNA soldiers as well as wounded civilians—regularly up to ninety a day. Patients lined the hallways and were moved into the basement fallout shelter for surgery. Hospital staff members were virtual prisoners because of the shelling. Medical supplies and food could not get in because the JNA had surrounded and cut off the town. The prosecution illustrated Dr. Bosanac’s testimony with a videotape showing the hospital under siege, including the

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appalling conditions in the basement surgery and the large hole left by an unexploded bomb that fell directly on the hospital, penetrated five floors, and landed on a patient. As the shells and bombs rained down, Dr. Bosanac sent fax after fax to the outside world: foreign ministers, international negotiators, and the European Community Monitoring Mission. It was like shouting into the void. When there was little of Vukovar left to defend and less to defend it with, Croatian forces surrendered on 17 November 1991. The JNA triumphantly took control and bused women, children, and some elderly men to Croatian territory. At the hospital that JNA troops had been shelling for months, they rounded up male patients and two women, one of whom was five months pregnant, put them on buses, and dispatched them to the nearby Ovcara farm where 264 were executed, their bodies buried in mass graves. Among them was Dr. Bosanac’s father-in-law. Concerning the hospital massacre Milosevic offered a three-pronged defense: if it occurred, it was carried out by paramilitaries; the JNA was in Vukovar trying to protect civilians and had nothing to do with the massacre that happened after evacuation; even if the JNA did have a role in the massacre, Milosevic was president of Serbia and had no control over the JNA. Yet Milosevic spent the majority of his cross-examination attacking Dr. Bosanac rather than her substantive testimony. Milosevic fired a long list of accusations at the witness (including that Serbian patients in the hospital were intentionally murdered), then suggested that she was called “Dr. Mengele,” after the infamous Nazi doctor who performed medical experiments on prisoners at Auschwitz. The witness retorted that it was Milosevic’s press that referred to her in this way. Another tactic that Milosevic used was to present a letter he claimed the witness had handwritten to a JNA officer, threatening if one vehicle left the JNA barracks, even an ambulance, it would be destroyed. Bosanac denied ever having seen the letter and declared it a forgery. She pointed out discrepancies between the handwriting in the letter and the handwritten statement she was forced to write in JNA custody. Whether or not Milosevic was scoring points with his public in this accusatory cross-examination, he did not impress the judges. Judge May lectured, not for the first time, “You have to understand that it is not a defense to attack the other side. The war crime of which you are accused is what happened at Ovcara. You choose to spend your time attacking the other side, but we need to know your position regarding the killings. Merely attacking the witness is of no assistance.” 190  War a n d At t e m p t s at P e a c e

Certainly attacking the credibility of a witness is appropriate crossexamination, but like all cross-examination it must be strategic to be effective. A lawyer conducts it with the fact finders in mind, whether judge or jury. Personal attacks are dangerous because they often generate sympathy for the witness. That was certainly true in Dr. Bosanac’s case. On the stand she spoke softly, apparently worn down by the traumas she had suffered and witnessed. Milosevic’s press may have characterized her as a Dr. Mengele, but in court she seemed more like a Florence Nightingale. She was a doctor with responsibility for the lives of thousands in the midst of war. Under horrifying conditions she kept her hospital operating, treating civilians of all ethnicities and combatants from both sides. She was arrested, detained, and interrogated. Her husband was treated brutally; her relatives, friends, and colleagues were killed. Yet despite Milosevic’s relentless attack, she did not waver. In addition to irritating the judges, Milosevic’s cross-examination goaded the witness into providing more details about the JNA’s role in the Ovcara massacre. When Major Veselin Sljivancanin of the JNA entered Vukovar Hospital on 20 November, Dr. Bosonac told the court, he brought doctors from the military academy with him and declared that the hospital was under their authority. It was under the authority of the JNA that 264 people were taken from the hospital, loaded onto JNA trucks, driven to Ovcara farm, and killed, as Milosevic gave the witness the chance to point out. The accused spent considerable time on his assertion that defenders of Vukovar had taken refuge in the hospital and changed into civilian clothes. This provoked an intervention by Judge May: “What I question is the relevance of whether there were guards dressed as patients. Are you saying it in any way justifies them being taken to Ovcara and executed?” While the point was arguably relevant on the issue of the doctor’s credibility in light of her denial that there had been such persons, it got Milosevic nowhere to continue focusing on this issue. Murder of POWs is still murder. When Vukovar fell Jovan Dulovic was a Serbian journalist for Politika Ekspres, a pro-regime newspaper. At the time he testified he had joined the staff of Vreme, an independent newsweekly which quickly attracted the best of Serbia’s journalists who were unwilling to work for the state-run media, a propaganda arm of Milosevic’s regime. Dulovic, a protected witness, asked the court to allow him to testify in public without protective measures despite recent threats. The court granted his request. Overnight the situation changed. At the beginning of his second day of testimony, the court announced, “circumstances having changed, the Court will hear the rest of the witness’s evidence in closed session.” War a n d At t e m p t s at P e a c e   191

Because of close connections with Serbian police and the JNA, Dulovic had access to conflict zones and sources unavailable to many. In Vukovar he had regular access to the JNA command center. It was there that he overheard Vojislav Seselj, head of the SRS and paramilitary leader, declare the Serbianization of the JNA and ethnic cleansing of Vukovar: “We’re all one army. This war is a great test for Serbs. Those who pass the test will become winners. Deserters cannot go unpunished. Not a single Ustasha must leave Vukovar alive. . . . The army is fighting rebel Croats. The army has shown it was able to cleanse its ranks. We have a unified command consisting of military experts who know what they’re doing.” When Seselj testified for Milosevic he admitted that he might have said, “We are all one army,” but he denied saying that not one Ustasha should remain alive, because he claimed to favor capturing and trying them in court. Dulovic was in Vukovar on the day of the massacre. He witnessed soldiers and paramilitaries escorting people from the hospital into JNA trucks. Though he did not witness the killings, two paramilitaries who participated told him about them. JNA and TO officers confirmed their stories. At a house where he was staying across the street from the command center, a redbearded paramilitary from Kameni’s unit of Seselj’s men recounted events of the previous night over coffee and slivovitz.8 He said he had been killing Croats from the Vukovar hospital from 5 p.m. until 1 a.m., though they cried and begged not to be killed because they had not shot at anyone. A woman paramilitary known as Dragica from Novi Sad confirmed the red-bearded paramilitary’s account. In a private conversation with Dulovic she said that she too had killed people. But she objected to her compatriot’s giving a public account of it. Later Dulovic saw a pile of camouflage uniforms in front of the command center. The pant legs were soaked in blood. The JNA captain Miroslav Radic and the TO commander Stanko Vujanovic separately confirmed the massacre.9 Vujanovic complained about having to use Seselj’s drunken men, who were “blabbing,” because there were not sufficient regular troops. This corroborated C-57’s testimony. During the defense case Seselj would confirm that the JNA invited the Seseljovci to Vukovar, where they were involved in its three-month siege. He denied, however, that after Vukovar fell any of his men went to Ovcara farm where the massacre happened. Though he was not on site at the time, Seselj said he was told so by Kameni, who he earlier testified had not been there. Seselj also learned that the JNA turned patients, who they said were guilty of crimes against the civilian population, over to local authorities. In fact they were taken to Ovcara and killed. 192  War a n d At t e m p t s at P e a c e

Dulovic’s testimony must have upset some people back home, because he received a renewed threat that closed the remainder of it to the public.10 The testimony was especially significant coming from a Serb with inside connections. Dulovic established a clear link between the JNA and the massacre at Ovcara. JNA soldiers loaded the people into JNA trucks that transported them to the killing site. Bloodied uniforms were piled outside the JNA command center. And JNA officers knew about the massacre, yet no adequate disciplinary action was taken. Dulovic’s testimony on Vukovar was also important because it linked Serbia to military actions against Croat civilians in Croatia. He established that SDB officers commanded local TOs. He also authenticated a telegram showing Serbian involvement and implying Serbian ability to control paramilitaries—many of them from Serbia. Lieutenant Colonel Milan Eremija of the JNA sent a telegram to the JNA’s First Military District Command. He complained that the paramilitaries’ objective was not to combat the enemy but “to loot people’s property and engage in sadistic abuse of civilians of Croatian nationality.” He cited the village of Lovas, where paramilitaries used captured villagers to clear a minefield, causing seventeen deaths. He complained about “the deliberate spread of misinformation, [including] exaggeration of numbers of opposing forces, the existence of snipers and of eyeballs gouged from the heads of Serbs.” Eremija recommended disarming the paramilitaries and stressed that Serbia should participate, since according to the witness no one else could accomplish it. Dulovic said he had never seen any attempt to implement the proposal. After Dulovic completed his testimony he requested that it be made public, and the court obliged. The testimony revealed that Milosevic spent the majority of his time questioning the witness about alleged Croat mutilations and killings of Serbs throughout Slavonia. Dulovic knew nothing about them. Nor would any knowledge on his part have been a defense to the Ovcara massacre. Milosevic’s lengthy recitation of murders and atrocities against Serbs was not meant to sway the judges but to convince his home audience that Dulovic cared nothing for those of his own ethnicity, implying that he was an agent of foreign intelligence services, as Seselj later charged. Through its witnesses and documents the prosecution established that the JNA knew about and facilitated the massacre of prisoners from the Vukovar hospital. While the paramilitaries carried out the torture, beatings, and killings, the JNA controlled them. Little if any effort was made to prevent or punish those involved. In public session there was no direct evidence that Milosevic ordered or knew about Ovcara. He was implicated, however, by others who testified that he and the JNA were working together by this time War a n d At t e m p t s at P e a c e   193

and that he was well informed of military activities by the generals, military intelligence, and his own SDB. After the fall of Vukovar Dr. Bosanac was held prisoner for three weeks, transported first to Sremska Mitrovica, then to Belgrade where she was interrogated and signed a statement “under duress.” Her husband was also arrested and detained in prisons in Kamenica and Stojicevo, where he was “brutally treated,” resulting in bruises, broken ribs, and head injuries that put him into a coma. After their release the two visited Lord Carrington, to whom the doctor “insisted that he ask Milosevic to allow Vukovar to go free.” Her plea was reminiscent of her sending faxes into the void. Vukovar remained under Serb control for four more years, while many of its citizens remained in prison camps until the spring or summer of 1992. In addition to the several thousand who died during and after the siege, 396 of Vukovar’s citizens have never been accounted for. Vance Spars with Milosevic

Another international dignitary from Milosevic’s days in power came to courtroom 1 to bear witness to Milosevic’s control of events in the former Yugoslavia. Ambassador Herbert Okun, deputy to the UN secretary general’s envoy to Yugoslavia, the United States secretary of state Cyrus Vance, met with Milosevic on many occasions to broker a peace deal on Croatia and later Bosnia. When the UN representatives needed agreement of the federal army, the rump Yugoslav presidency, or local Serbian and paramilitary forces in Croatia and Bosnia, they sought out Milosevic because “he was certainly the man in charge,” Okun testified. While Cyrus Vance had since died, Ambassador Okun was able to give verbatim accounts of the meetings by referring to his meticulously kept diaries from that time. For example, in a three-hour meeting with Milosevic, Vance, and the Yugoslav foreign minister Jovanovic, Okun recorded a cat-and-mouse exchange about the role of paramilitaries in Bosnia. “What about Arkan on the Drina [on the Bosnian side]?,” Vance asked. “General Adzic says he’s there.” Milosevic denied this and said it was completely prohibited for him to go outside Serbia, then admitted that he had been in Bijeljina (Bosnia), but only as an individual. According to the ambassador’s diary Vance did not believe him: “No, that won’t wash,” he replied. “Let me be frank. People I trust have seen Arkan and other Serbian types with heavy equipment along the Drina. Why is this happening?” The diary recorded the following exchange:

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Milosevic: There were only some individuals. They are not in the control of Serb authorities. We forbade paramilitaries. Arkan was in Bijeljina only at the beginning. Vance: To be perfectly frank, you and Serbia are being hurt. If this continues it will have a negative effect on Serbian recognition and derecognition [declaring it an outlaw state]. Milosevic: I agree. We are being hurt. We can’t check on every Serb. Vance: You have a real problem. You have to CLEAN IT UP. I speak as a friend. . . . Milosevic: No one is in Bosnia-Herzegovina from Serbia. Vance: Serbia cannot hope to win a military victory in Bosnia either directly or surreptitiously [either through the JNA or paramilitaries]. Milosevic: That’s right. Do you think I want a war in BosniaHerzegovina? Vance: It looks that way. The diaries provided a contemporaneous record of meetings that Vance and Okun attended with Milosevic and other top officials between October 1991 and May 1993 to negotiate a ceasefire as fighting raged first in Croatia, then in Bosnia. They revealed Milosevic with all his charm and wiles. As well, they revealed the most powerful man in the Balkans, the one who could broker or break a deal. Showing that all paths led to Milosevic’s door, the diaries were a goldmine for the prosecution. Not only did they provide a nearly verbatim record of diplomatic meetings with Milosevic, but he essentially adopted them—to the prosecution’s great satisfaction. Vance’s first mission was to negotiate an end to hostilities in Croatia, Okun testified. He presented Milosevic with a proposal for a ceasefire, protection of civilians in designated areas (United Nations Protected Areas, UNPAs), and a UN peacekeeping force in Croatia. Milosevic said the plan was “completely suitable.” (Milosevic supported the Vance plan because it gave him what he wanted: preservation of Serb territorial gains, the RSK government, and Serb paramilitaries in Croatia, while freeing the JNA to fight in Bosnia.) Asked how Defense Secretary Kadijevic would react, Milosevic said there would be no problem. When Vance and Okun met with Kadijevic a short time later, he indeed had no problem with the plan. It appeared that he had been given marching orders before his meeting with the diplomats.11 Milosevic also assured Vance and Okun that the Croatian Serbs would go along. That was not so easy. Milosevic reported to the envoys at a meeting on 2 December 1991 that Hadzic and Babic would not initially respect the War a n d At t e m p t s at P e a c e   195

accord, but he had secured at least their pro forma consent. According to the ambassador’s verbatim notes, Milosevic said, “I promised and I did.” In fact Babic continued to oppose the Vance plan. What became known as the Geneva Accord (the Vance plan), establishing conditions for the cessation of hostilities in Croatia, was signed on 23 November 1991 by Tudjman, Milosevic, and Kadijevic. No one from the federal presidency or the Croatian Serbs signed it, eloquent testimony of where the power lay. The accord had four main points: Croatia would lift the blockade of JNA barracks; the JNA would withdraw personnel and equipment from Croatia; the parties would immediately instruct all units under their command, control, and political influence to cease fire and assure that paramilitaries and irregulars would also observe the ceasefire; and the parties would facilitate the delivery of humanitarian assistance. Okun testified that Milosevic committed himself and the federal authorities to the second, third, and fourth provisions. The UN looked to Milosevic to deliver. In fact Milosevic could not deliver Babic, who (rightly) feared that withdrawal of the JNA meant abandonment of the Croatian Serbs and their pseudo-state, after Milosevic had led them to believe that it would become part of an enlarged Serbia. Babic continued to hold out despite threats and intimidation during a seventy-hour meeting in Belgrade with Milosevic, the army chief of staff, representatives of the federal presidency, and leaders of the Bosnian Serbs. In the end Milosevic orchestrated Babic’s removal from office. The RSK Assembly then approved the Vance plan, clearing the way for UN peacekeeping forces to implement it. As negotiations for a ceasefire in Croatia were happening, so was the worst destruction of the war in Croatia: the siege of Vukovar. Okun accompanied Vance to Vukovar on 19 November 1991, the day after the city had fallen to JNA and Serbian forces, the day before the massacre at Ovcara. “Much of the town, almost every building, every structure was destroyed by shell fire,” the ambassador testified. In contrast, the small JNA garrison that had been blockaded by Croatian forces was “practically untouched,” though the alleged objective of the JNA’s assault on Vukovar was to free the garrison. The near total destruction of the town was wholly disproportionate to the stated objective. Okun called it “a shocking sight.” Alerted to a possible tragedy at the hospital in Vukovar, Vance and Okun tried to reach it. Major Veselin Sljivancanin stopped them. Vance, a former United States secretary of the army, angrily confronted the major. Sljivancanin raised his rifle and refused to let Vance and Okun pass. Okun testified to seeing “many affecting scenes of weeping civilians” at the reception cen196  War a n d At t e m p t s at P e a c e

ter, as well as “many rough customers” intermingling with the JNA troops, conveying an “air of brooding and imminent menace.” The imminent menace played out at Ovcara the next day. Back in Belgrade the two diplomats met immediately with General Kadijevic, then Milosevic. Vance confronted Kadijevic with the disproportionate and enormous damage done to Vukovar, ostensibly to free a small garrison. Kadijevic replied that the garrison had run out of food and water. On the stand Okun pointed out that according to Borisav Jovic in his memoirs the Vukovar garrison was freed in September (two months before the siege of Vukovar ended), but Milosevic’s response had been more sanguine: “[Milosevic] said the world would understand the destruction.” He did not say on what basis. It was evidence that Milosevic was aware of crimes (attacking civilian targets) committed by forces over which he had control, yet did nothing to discipline them.12 Milosevic’s commitment to the Vance plan was like so many of his agreements: promise everything but do nothing. JNA troops remained in Croatia for seven to eight months despite agreement for an immediate withdrawal. When they left they handed over weapons and equipment to the Croatian Serbs, who never demilitarized. Paramilitaries like Arkan’s and Seselj’s men remained in Croatia, actively fighting and committing crimes. There was also concern about Serb paramilitary activity in the Krajina, which Vance took up with Milosevic. “Vance said he trusted the president and looked to him to deliver them [to comply with the ceasefire]. The president replied ‘I will use my influence. I am not their master, but I am sure they will fulfill their promise.’ ” When asked directly by Groome, “Who was the primary person who you sought to confirm that the parties representing the Serbian side were still willing to observe their obligations under the ceasefire agreement?,” Okun replied, “President Milosevic.” Milosevic did not repudiate Okun’s diaries but relied on them as an accurate record of what he said during their meetings. While his purpose was to show that he consistently sought a peaceful solution, it also showed that he was the man in charge. Milosevic provided many opportunities for Okun to testify that he and Vance had repeatedly sought him out to bring the other players along: Okun: As I’ve said, Mr. Vance was of the firm conviction, as was Lord Carrington, I believe, and I know I was, that by your signature was given the assent of the political forces of Serbia, Serbian-controlled political forces, Serbian-influenced political forces. Additionally, we understood War a n d At t e m p t s at P e a c e   197

your signature to indicate the assent, and this is so recorded in the document, of the paramilitaries and the irregulars. That was Mr. Vance’s view, and I believe it turned out to be the correct view. Milosevic: So you asked me to sign it because of my political reputation to assist peace and not because I had anyone under my command over there. That is quite clear, isn’t it, Mr. Okun? Okun: With all due respect, I would say the opposite is quite clear; namely, that you had control. To Milosevic’s repeated denials, Okun could not resist pointing out that Joseph Stalin held no official position beyond that of general secretary of the Communist Party. Milosevic quoted himself from the diaries, assuring Vance and Okun that he wanted a peaceful resolution of the crisis. While Okun acknowledged that this was indeed what Milosevic had said, he also pointed out that Milosevic’s words often differed from his deeds. Milosevic was offended: “I gave you that assistance and support. I invested my whole authority behind it, and now that is my greatest fault, because it is proof that actually I had control over them [the Croatian Serb leaders]. So instead of thanking me for the assistance I gave in the establishment of the peace operations, you’re accusing me of holding things under my control in Krajina and in Bosnia and Herzegovina.” With time for one more question, Milosevic once again hurt his case: Milosevic: One thing: if [Okun] says he knows everything, then surely he couldn’t testify about anything that would be contrary to the aims of achieving peace and the efforts that Serbia and I personally invested to achieve peace in the territories of the former Yugoslavia. So did Cyrus Vance ever give you any indication that would deny what I have just said? Okun: He frequently gave me more than indications, but his view: that you were sometimes helpful, frequently unhelpful in the peace effort, and always in charge. Yet more evidence that Milosevic pulled the strings.

Charles Kirudja, an international civil servant with the United Nations Protection Force (UNPROFOR), was first posted to the area of Western Slavonia to help implement the Vance plan in April 1992. Fairly quickly Kirudja 198  War a n d At t e m p t s at P e a c e

discovered that Serbs and Croats had two very different views of it. Where Croats considered that the plan required UNPROFOR to deploy along the civil borders between the former republics, the Serbs understood that the international force would deploy along the confrontation line, thus securing their victories in recent fighting. The disputed area was known as the Pink Zone. Not long after his arrival, Kirudja became aware local Serb officials were operating on another agenda—that all Serbs should live in one country, separated from non-Serbs. General Spiro Nikovic, commander of the JNA 10th Corps, whom Kirudja described as “a very impressive man . . . truly dedicated to his profession, trying to do a fair job . . . to demobilize,” described his understanding of the new reality, a reconstituted Yugoslavia made up of seven countries. In it Serbs would control 80 percent of the state of Bosnia and 93 percent of the Republic of Serbian Krajina. While the intention to control the Krajina illustrated the Serb view that the Vance plan consolidated their war gains, the intention to control Bosnia was an indication that the war was far from over. The truce in Croatia allowed Serbian forces to regroup for the Bosnia campaign. As part of the demobilization, General Nikovic conscientiously informed Kirudja that the JNA had orders to withdraw all officers who were not nativeborn from the Krajina and Bosnia with the exception of thirteen officers, revealing that Belgrade had no intention of complying with the Vance plan. In addition, he provided Kirudja with a list of troops and weapons that they would leave behind “for the territorial defense (TO).” Nikovic said that the JNA’s intention was to leave a clean situation in Croatia when it pulled out. He never saw it realized. With two to three weeks left to complete demobilization, Nikovic was retired. It was “unmistakably something he did not expect,” according to Kirudja. It made way for the transformation of the local TO from a law enforcement organ into an army. Local Serbs, according to Kirudja, found a major loophole in the Vance plan for disarmament in areas protected by the UN—the requirement to form local police forces for civilian law enforcement purposes. The Serbs merely changed their military green camouflage to police blue and repainted their armored personnel carriers. They did not bother to change the command structure or the names of divisions. After Croatia in early 1993 stormed the Maslinica Bridge, Serbia’s only connection to Dalmatia, Serbian forces had the excuse that they needed to retake weapons they had turned over to the UN, a further indication that signing the Vance plan meant little to Milosevic

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(or Tudjman). Their new armed force was called the Army of the Republic of Serbia Krajina (ARSK). How the Serb intention to control 80 percent of Bosnia was to be realized also emerged in events on the ground. Kirudja began to notice disquieting signs in the area known as the Bihac Pocket, a predominantly Muslim enclave. Serb forces withdrew from the area and took up positions in the surrounding hills, from which they began shelling Bihac. On 15 May 1991 the JNA blew up the airport. Kirudja expressed concern to his superiors: “I fear that behind the mountains . . . unspeakable atrocities may be unfolding.” His intention was to “alert the authorities with competence to address the problems of the desperate people in the area.” Problems were also coming from another direction. The mayor of Dvor, then Serb-controlled, approached him with a strange request. The mayor and his counterpart in Bosanski Novi across the river had agreed to transport five thousand people through Bosanski Novi so that they could relocate in Austria or Slovenia. The mayor wanted UNPROFOR to provide a film crew to record that the people were transiting safely. Kirudja replied that it seemed unnatural for so many people to leave their homes and asked who they were. When the mayor said they were all Muslims, Kirudja protested that the mayor did not have authority to transport people from another country, i.e. Bosnia. The mayor informed him that there was a new government in central Bosnia from which the people were moving, an entity that was now part of the Serbian Republic of Bosnia-Herzegovina. It was an entity Kirudja had never heard of. Kirudja rejected the request. He felt that the UN was being asked to participate in creating thousands of refugees, a problem that it usually assists in resolving. The local Serb officials were not dissuaded. The next day the mayor of Bosanski Novi showed up to reiterate the request and provide a more detailed explanation. Under Kirudja’s probing the mayor revealed that the transferees were Muslim men who had refused to swear allegiance to the new government or to fight for it. Kirudja said it did not sound as if they were leaving voluntarily. He recorded the mayor’s reply in his diary and read it out in court at the request of Dermot Groome: “I admit that the Muslims have been under pressure from armed Serbian military irregulars.” Though denied a UN escort, the mayors went ahead with their plans. A dramatic moment in Kirudja’s testimony came when he told about receiving a flash report from the UN military observer post across the river from Bosanski Novi. The observer described seeing hundreds of people being

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herded into a football stadium, some detained and others loaded onto buses. Groome asked the witness whether there was anything peculiar about the arrangement of people on the football field. Kirudja’s response ended the day’s testimony: “They had formed themselves into an ‘SOS.’ ” The so-called ceasefire in Croatia set the stage for war in Bosnia. Operations Flash and Storm

After taking 30 percent of Croatian territory in the early days of the war, Serb forces held onto it until 1995. By 1993, as political talks mandated by the Vance plan went nowhere, Tudjman suspected his co-conspirator in redrawing Yugoslavia’s map intended to keep the Croatian Krajina. To see if Milosevic had changed his position on reintegrating the RSK into Croatia, he appointed Hrvoje Sarinic as his confidential envoy to him.13 Sarinic held fourteen confidential meetings with Milosevic over the next two years. Despite numerous promises, no progress was made for the Krajina’s return. Sarinic faulted Milosevic: “You were the ‘peacemaker’ on the surface, but any agreements always fell through.” As a result Croatia resumed fighting in 1995 in violation of the Vance plan, which froze positions and interjected UN troops in 1992.14 In court Milosevic made much of Croatia’s renewed assaults to reclaim the territory. He considered it a personal betrayal. Sarinic testified about a telephone call from Milosevic after Croatia launched Operation Flash in May 1995. “Why are you doing this?,” Milosevic furiously demanded. “Why did we spend so many hours in discussion?” Sarinic replied, “You see what the situation is like with the Serbs in Krajina over which you have considerable influence and we cannot achieve anything. . . . Get [Milan] Martic and [the ARSK commander General Milan] Celeketic replaced and it will improve.” Milosevic said he had not appointed them and could not replace them, then slammed down the receiver. Earlier, however, it was Milosevic who negotiated with Zagreb on behalf of Croatian Serbs to reopen a highway that they had blocked. Sarinic insisted that the negotiations were between Belgrade and Zagreb, not Zagreb and Knin. “You were involved up to your neck, it is absolutely certain. The Knin leadership could not do anything without you,” he told the impassive Milosevic. Attempting to show Croatia’s perfidy in restarting the war in Croatia, Milosevic read from confidential Croatian documents, including verbatim notes of Tudjman’s meetings with his leadership, disclosing a plan to provoke an incident to justify renewed fighting. Sarinic did not deny Croatia’s initia-

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tion of the attack but replied that provocation was not necessary. Any state has a right to take up arms to liberate its territory once it has been illegally occupied, he said. Milosevic also broached the role of the United States for allegedly sanctioning the Croatian attacks on the Serb enclaves. Quoting transcripts in his possession, Milosevic confronted Sarinic with Ambassador Richard Holbrooke’s statement that Croatia had justification for the military operation and he had defended its position in Washington. “[The United States] gave you the green light for the operation,” Milosevic accused. Sarinic’s diplomatic answer was, “They saw the negotiations were not going anywhere. They never told us openly that we could launch an action, and they stopped the operation when it was moving toward Banja Luka. . . . Holbrooke was an absolutely pragmatic politician.”15 Milosevic responded, “I know how they stopped it—with me telling Holbrooke we would stop negotiating if they failed to stop it. Holbrooke said he would see Tudjman right away.” Sarinic commented wryly: “You have turned into a witness.” Whether Milosevic’s phone call stopped the Croatian offensive in May or not, neither he nor the RS intervened on behalf of the Krajina Serbs in August. They were left to their fate. Others have said it was for this reason that Milan Martic ordered a missile attack on Zagreb, which elicited a furious reaction from Milosevic at the time because it was not part of the plan. The first (former) United States official to testify, Ambassador Peter Galbraith, did so without a representative of his government in the courtroom to assure that he did not reveal state secrets. As ambassador to Croatia from 1993 to 1998, Galbraith met regularly, sometimes several times a day, with President Tudjman, and was involved in the Dayton peace process. He also met with the accused. When Galbraith took on the mantle of ambassador to Croatia in 1993, the United States had belatedly decided to take a more activist role in the region. Galbraith had the responsibility of doing something about the Krajina, from which Serbs had recently expelled the Croats, declaring it an autonomous region with the intent to join Serbia. The Croats wanted their territory back. With Milosevic hovering like a dark shade almost invisibly over all events, Galbraith testified, “It was apparent to me and all other international mediators that the accused was the key to any peace settlement, that the Krajina Serb leadership wouldn’t make any substantive agreement without his approval. . . . Leaders with whom I negotiated, Babic, Milanovic, said they regularly consulted with the accused.” Tudjman and the Croatian government also considered Milosevic critical 202  War a n d At t e m p t s at P e a c e

to any agreement with the Krajina Serbs. When after three years he concluded that Milosevic did not support a negotiated settlement for the Krajina, Tudjman launched Operations Flash and Storm.16 The operations were “successful,” effectively ending Serb efforts to carve out their own state in Croatia, though destroying the Krajina in the process. The forced reallocation of territory among the warring parties was sufficient to bring them to Dayton in late 1995, where they reached an agreement that ended the war in Bosnia. It also made refugees of nearly 200,000 Krajina Serbs. Many remained in refugee quarters in Serbia at the time of Milosevic’s trial eight years later. Milosevic’s cynical treatment of the Krajina Serbs emerged from the background of the failed peace negotiations. In 1994 the United States, Russia, the European Union, and the UN initiated the Z-4 process to find a peaceful solution for territories in Croatia controlled by the self-styled Republic of Serb Krajina. The Z-4 plan gave Serb-majority areas in Croatia significant autonomy, including the right to elect their own president and have their own emblem, their own currency, and “very, very substantial self-government,” according to the ambassador. Behind the scenes Milosevic worked against adoption of the Z-4 plan, despite its advantages to the Croatian Serbs. As Galbraith testified, “Milosevic had no interest in the welfare of Serbs that lived in Krajina. He looked at Z-4 not for what it might have done for the Serbs of Krajina . . . but as a precedent that might be applied to Kosovo.” In other words, if Croatia provided a high level of autonomy to a minority (the Serbs), then Serbia and the FRY would have difficulty arguing against similar autonomy for the Kosova Albanians. As with the Carrington plan three years earlier, Milosevic’s concern to maintain control over Kosova (and his power) trumped any desire to end the war, regardless of the cost to the Croatian Serbs for whom he negotiated. The failure of the Z-4 plan, the ambassador said, played a very significant part in Croatia’s decision to take military action to reclaim the Krajina. Tudjman, familiar with Milosevic’s objectives and motivations, realized that Milosevic was the key to any resolution and that he would not support the Z-4 plan. That knowledge freed Tudjman to accept it, knowing that he would never be put to the test of implementation. Moreover, Tudjman knew that he would have international support to launch Operation Storm given the situation on the ground at the end of July 1995. The UN was not disposed to stop Croatia after the recent massacre at Srebrenica, the attack on the UN safe haven of Bihac, and the continuing assault on Zepa, another so-called safe area. Clearly Serbian forces were on War a n d At t e m p t s at P e a c e   203

a rampage. UN member states were not going to object if Croatia acted more aggressively to defend its own territory. Galbraith gave Tudjman the green light, as far as Washington was concerned. The United States had been playing an exhausting and losing game of shuttle diplomacy between Zagreb and the RSK. “We expressed understanding for the situation in which they found themselves and for the fact they were prepared to expend blood and treasure to save Bihac. We were very concerned it would fall and become another Srebrenica, with four times as many people. We didn’t approve military actions and pointed out it was always a risky proposition and if Croatia got into difficulty they couldn’t expect help from the U.S. I warned President Tudjman in the strongest possible terms that he would be held accountable for protecting the Serb civilians and the UNPROFOR.” The United States made one last effort for a peaceful resolution the day before the military action was to be launched. With Tudjman’s agreement Galbraith arranged for a meeting with Milan Babic in Belgrade, where Babic agreed to make a public statement at the Geneva negotiations the next day that he accepted autonomy under the latest proposal. While he was certain that he could get his party to go along, Milan Martic (by then the RSK president) would only do what Milosevic told him. Milosevic was silent. The ambassador shuttled back to Zagreb to implore Tudjman to give the Krajina Serbs a few more days to agree. Tudjman did not believe, however, that Babic had the influence to deliver the Serbs. He launched Operation Storm on 3 August 1995. Despite the warning to Tudjman from the United States, the Croatian military engaged in “much illegal and criminal behavior,” burning homes and killing hundreds of Serb civilians who were unable to flee in advance of the Croatian onslaught.17 Milosevic spent considerable time during cross-examination proclaiming himself innocent of any knowledge that war in the Krajina was imminent. During the eleventh-hour attempt to reach a peaceful resolution, Milosevic was unreachable, according to Galbraith. Realizing that his agreement was necessary if Martic’s was to be had, the ambassador asked the United States chargé d’affaires to meet with Milosevic. He was told that Milosevic was on vacation and could not be contacted. Galbraith expressed his disbelief to the court: “Milosevic must have been very cut off on top of the mountain. Everyone else in the world understood in August 1995 that Europe was on the verge of the biggest battle since WWII. How any leader could be on vacation with the fate of so many people, Serbs, at stake, I can’t understand. . . . He could not have not known.” Referring to Babic’s earlier admission in court, Milo204  War a n d At t e m p t s at P e a c e

sevic pointed out that he had contacted him, though Babic led the ambassador to believe that he had been unsuccessful. It did little to help Milosevic’s cause, merely establishing that he knew war was imminent, he was being asked to do something to prevent it, and he did nothing. Milosevic’s cross-examination also provided a look at the “neutrality” of the United States with respect to arms shipments to Bosnia in violation of the UN arms embargo. While stating categorically the United States was not involved in arms smuggling into Bosnia, Galbraith readily admitted that his country looked the other way when arms were shipped to Bosnia. “On 28 April 1994, President Tudjman asked me what would be the attitude of the U.S. if Croatia were to accede to a request from Bosnia-Herzegovina to permit arms from Iran and other countries to transit Croatia to Bosnia-Herzegovina. On instructions, I said I had no instructions, which he understood to mean that the U.S. didn’t object and the arms shipment went forward.” The ambassador explained that the Clinton administration did not support UN Resolution 713, imposing an arms embargo on the former Yugoslavia, because the resolution favored the aggressor. “Serbia had all the arms of the Yugoslav People’s Army and the victims, the Bosnia-Herzegovina Government, were left undefended. The U.S. didn’t violate the arms embargo. It took the position that Resolution 713 shouldn’t be the only resolution honored when every other resolution was being dishonored mostly by the Serb side, especially requiring the protection of innocent civilians.” Regardless of the morality of the United States position, this reasoning leads to the conclusion that UN resolutions (treaties) may be disregarded at will, which undermines a stable international order based on the rule of law. After Operation Storm the United States “took over the peace process,” according to Galbraith. Working as a team with the UN representative Thorvald Stoltenberg, he facilitated an agreement between Croats and local Serbs for Eastern Slavonia, which Croatia had not attacked because of its proximity to the border and Serbian military forces. Since Milosevic was not a party to these negotiations, he later told Holbrooke that no such agreement had been reached. Then came Dayton. In October 1995 the United States brought the players to Dayton, Ohio, to work out a settlement to the wars in Bosnia and Croatia. Milosevic negotiated for both the Bosnian Serbs (their leader, Radovan Karadzic, could not come because he had been indicted by the ICTY for war crimes) and the Croatian Serbs. While Milosevic had written authority from Karadzic, he had nothing similar from the RSK leaders. It did not matter. He just proceeded to represent them. War a n d At t e m p t s at P e a c e   205

At the first meeting between Milosevic and Tudjman, Eastern Slavonia was on the agenda. An agreement had pretty much been worked out in advance between the local Serbs and Croatia. Tudjman, however, said that the key issue was “whether Milosevic is going to accept reintegration of the territory into Croatia.” Milosevic dismissed the negotiated agreement, saying that there should be a referendum. When Tudjman angrily threatened military action, Milosevic replied, “You’re a good man, but I can see you’re under the influence of your generals.” After a heated conversation Milosevic dropped his referendum requirement. When the prosecutor asked the ambassador whether Milosevic had complete authority to negotiate, he responded, “Apparently.” However much he said that the issue was for local Serbs to decide, he made the decisions. Milosevic indicated as much to the ambassador himself, after the conclusion of the joint meeting. The parties had agreed that Galbraith and Stoltenberg should go to the region and negotiate a resolution for Eastern Slavonia directly with the locals. Though Milosevic had signed on, he implied to the ambassador that this was a waste of time and that Galbraith would be better advised to “spend his time on vacation in Dubrovnik.” “I interpreted that to mean that settlement on Eastern Slavonia would not be decided by locals but in Dayton at such time as Milosevic thought convenient and useful to him to settle the issue.” Back in the region, Milosevic’s advice was confirmed by Milan Milanovic, negotiating on behalf of the Serbs in Eastern Slavonia. When the ambassador presented a draft proposal to him, Milanovic said, “I’ll sign this draft if Milosevic tells me to do so.” Ambassador Galbraith concluded, “It was completely clear to me we were not going to have an agreement until the accused decided we would and it wouldn’t depend on anything in Eastern Slavonia but when he found it convenient in Dayton, in the overall process.” With each succeeding witness the picture of Milosevic’s influence on events and people gained a more substantial shape. Rather than the peacemaker, he looked like the puppet master, pulling strings, directing the course of events. He did not act alone, but he was the one person everyone had to reckon with. The Prosecutor’s Dilemma

By the spring of 2003 more than a year of trial had passed, with the bulk of the prosecution’s Bosnia case still to be presented and a deadline for completion fast approaching. Management of the unwieldy giant continued to be as much of an issue as Milosevic’s responsibility for the crimes. As the prosecu206  War a n d At t e m p t s at P e a c e

tion struggled to prove its case within the ever-constricting limits set by the court, squeezed more tightly by Milosevic’s illnesses (five significant adjournments during the first four months of 2003, with two more to follow in May), the chamber struggled to balance the rights of a self-represented accused with its duty to see justice done as expeditiously as possible.18 The accused took little interest in such matters, except to demand cross-examination of all witnesses for as long as the court would allow. The prosecution proposed several time-saving devices to the court, including the admission of transcripts from other ICTY trials, the admission of relevant facts established in other cases (adjudicated facts), and the presentation of more evidence in writing, all allowed under ICTY rules. Despite its frustration with an ever-lengthening trial, the court responded cautiously to the prosecution’s suggestions. Though it admitted transcripts from other trials and allowed more written evidence, the court ordered that witnesses must appear in court for cross-examination where the written evidence concerned matters directly related to Milosevic’s role in the crimes charged.19 While the chamber’s decision was essentially a correct one, protecting the accused’s right to confront witnesses against him, the time saved was much less than without cross-examination, particularly because the court broadly defined areas subject to cross-examination and Milosevic insisted on crossexamining all witnesses, often on irrelevant or side issues. The same was true with Rule 92 bis witnesses. The rule provides for written evidence “in lieu of oral testimony” when it goes to prove “matters other than the acts and conduct of the accused as charged in the indictment” (emphasis added). It was designed for background or historical matters and cumulative testimony, such as the statements of multiple witnesses to a crime scene. Had the court accepted written evidence without cross-examination, it would have saved fifty days of court time. Yet for a good part of the trial the court allowed cross-examination in all cases. The prosecutor then offered a novel proposal: that he would present almost his entire case in writing, as is done in the civil law system and in complex civil cases in some common law states. The procedure allows for limited cross-examination, as well as questions from the bench. The court was not interested. Written evidence, while time-saving, has its downside. As Nice admitted, the prosecution’s case loses some of its vitality. Moreover, the court is denied the opportunity to evaluate the demeanor of witnesses in assessing their credibility. The public is essentially shut out of the process, as the large number of victims, survivors, and the culpable in the former Yugoslavia would War a n d At t e m p t s at P e a c e   207

have been. The trial chamber in Milosevic was averse to considering the public interest in the trial, informed by years of experience in domestic trials where the public is the poor stepchild of the system if it is acknowledged at all.20 That is not the way of the future, as seen in the statute of the International Criminal Court that allows victim representatives to participate at trial, among other innovations.21 The court was left to mull this over as the prosecutor turned to wrapping up the Croatia case. Within two weeks, however, Milosevic’s high blood pressure kept him out of court. After a week off the accused refused the cardiologist’s advice to increase his medication, rendering himself unable to return to trial. It was not the first nor the last time that Milosevic deviated from his prescribed medication plan, often resulting in an increase in his blood pressure, more time off for him, and lengthy trial delays. Showing frustration with a further delay in a case where recesses were becoming more frequent than trial days, Judge May suggested that the court might issue Milosevic a warning to take his medication, or else the trial would continue without him. “He cannot be allowed to render himself unfit,” the judge asserted. In fact Milosevic continued to do just that, as the tribunal’s investigation of his death later revealed. Milosevic said that the medication caused him to feel drowsy, impeding his ability to prepare for and conduct his defense. Raising this issue created a dilemma for the court. The trial had been recessed fifty-four days for the accused’s health, in addition to following an abbreviated schedule. The prosecution took approximately a hundred partial days for its Kosova case. Since the Croatia case had begun on 26 September 2002, nearly six months before, the trial had been in session for only forty days. The court was facing increased pressure to do something. The prosecution offered a variation of Judge May’s suggestion of continuing the trial in Milosevic’s absence: when Milosevic was ill, prosecution witnesses could give evidence in court while Milosevic watched a video recording. Steven Kay, an amicus, objected because this arrangement would prevent the accused from exercising his right to cross-examine, at which point Judge May could not resist commenting that amici might act as standby counsel to raise issues of credibility and inconsistencies, “as Mr. Tapuskovic is always doing.” This showed his frustration with Tapuskovic, who had difficulty differentiating between the role of amicus and that of defense counsel. Kay answered that he would be reluctant to assume this role without instructions from Milosevic, which were unlikely to be given. He ended with a prophetic warning: “At the end of the day very little good will come out of [directing 208  War a n d At t e m p t s at P e a c e

others to take over the role the accused has declared is his].” Though objecting quite strongly, he added, “We will do whatever we are told to do.” In a written opinion delivered within the week, the court denied an earlier prosecution request to impose counsel on Milosevic, concluding, “In the present circumstances, the accused has the right to defend himself in person.” The court recognized that civil law systems often require the criminal accused facing serious charges to be represented by counsel, whether or not the accused agrees. Yet the court chose instead to adopt the rule prevalent in common law systems, stating that the ICTY is “essentially adversarial.” In doing so the court quoted extensively from a decision of the U.S. Supreme Court, which held that the imposition of counsel without an accused’s consent violates the Sixth Amendment to the Constitution.22 The court did so despite the absence of anything similar to the Sixth Amendment governing the ICTY. The court buttressed its finding on practical considerations. If counsel were imposed on Milosevic, he could refuse to instruct counsel as to which defense to adopt, thereby rendering counsel impotent, in the court’s view. The court’s characterization of an adversarial system in which the accused tells his counsel what defense to put forward does not reflect all adversarial systems. In the United States, for example, decisions involving strategy, including which witnesses to call, are generally matters for counsel. They need not consult with their client and may make decisions with which the client disagrees. Decisions which are solely the province of the accused include whether to plead guilty, whether to waive a jury trial, and whether to testify on one’s own behalf. Asserting that Milosevic was competent to defend himself and had rejected the court’s advice that it was in his best interest to be assisted by counsel, the court concluded that he was “entitled to defend himself in person.” But the court left a door open, noting that the right to defend oneself is not absolute. It referred to a decision in its sister institution, the International Criminal Tribunal for Rwanda (ICTR), in which a trial chamber held that there may be circumstances “where it is in the interests of justice to appoint counsel [against the accused’s will].”23 Having left itself this escape route, the court declared, “No such circumstances have, as yet, arisen in this trial. However, as the Trial Chamber has said, it will keep the position under review.” In seeking to preserve its options with an obstreperous accused, the court held out the possibility that the interests of justice might trump the rights of the accused under the right circumstances. By its ruling the court missed the opportunity to appoint counsel at a time War a n d At t e m p t s at P e a c e   209

when doing so might have worked. During the prosecution’s case Milosevic’s role was to cross-examine witnesses and make objections and submissions to the court. Had counsel taken over during this phase of the case, the trial could have proceeded. Waiting until Milosevic began presenting his case (when he controlled witness appearances) left Milosevic with the power to stop the trial. His witnesses could simply refuse to come, which is in fact what happened in the fall of 2004.24 On 17 April 2003 the prosecution filed its long-awaited motion for an extension of time. In its ruling on 25 July 2002 the court had established 16 May 2003 as the end date for the prosecution’s case on all three indictments. The court also limited the number of witnesses and the time allotted to each phase of the case. In its motion the prosecution pointed out the unintended anomaly that this created: a need for the prosecution to end its case “after 177 live witnesses or on 16 May 2003 whichever came sooner, such a formula being arguably out of place in a criminal trial.” The prosecution reviewed the steps it had taken to comply with the court’s limitations on time and witnesses while still presenting sufficient evidence to prove the indictment. For the most part, the prosecution argued, the court had rejected its initiatives to produce evidence in time-saving ways. Its final assessment was that “the remaining time difficulties are no longer within the prosecution’s ability to resolve without being obliged to abandon significant portions of the core case against the accused.” The prosecution did not ask the court to set a new end date for its case, a device it considered artificial. The real issue underlying limitations on time and witnesses, and time-saving procedures, was the need for a full presentation of the case against the accused in as expeditious a manner as possible. Based on this, the prosecution asked the trial chamber to “allow the prosecution case to continue until the Chamber has heard the evidence either of all the witnesses [the prosecution proposed to call]” or those the court thought necessary to complete the prosecution’s case. Essentially the prosecutor was telling the court, “Either let us present the evidence we believe is necessary or you make the decisions.” The legal language, and the unorthodox proposal, hid a high degree of frustration by the prosecution team. Nor was Milosevic’s position stable. Aside from his health difficulties, it was likely, in the roundup after the murder of Prime Minister Djindjic of Serbia, that Milosevic had lost a part of the network providing shadow assistance to his cross-examination of prosecution witnesses. He appeared to have lost all contact with his main source of support, his wife, who was reportedly somewhere in Russia on the run from Serbian authorities. 210  War a n d At t e m p t s at P e a c e

Within a month the trial chamber granted the prosecution’s request for more time. It added a hundred days to the deadline of 16 May 2003, fiftyfour of which were to make up for the time lost to Milosevic’s illnesses. Even with a hundred additional days, the prosecution was anxious that it might not be able to complete a major part of its case—Bosnia in its entirety, and Sarajevo and Srebrenica in particular—given the court’s aversion to receiving witness testimony in writing. The prosecution had to press on, hoping that the court’s desire to hear a more complete Bosnia case would eventually lead to a relaxation of its strict timetable and interpretation of evidentiary rules.

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Wa r C o m e s t o B o s n i a Chapter 9

Miloseivc and Tudjman Divide Bosnia

“[Tudjman] told me on one occasion that he had been given Cazin Krajina [in northwestern Bosnia] by Mr. Milosevic,” Stjepan Kljuic, Croatian member of the Bosnian Presidency, testified.1 He responded to Tudjman, “That is the same as if I were to give you Sardinia or Sicily. It does not belong to him.” Kljuic was referring to the infamous meeting in March 1991 between Milosevic and Tudjman at Karadjordjevo, Tito’s old hunting lodge, where the two presidents discussed dividing Bosnia between them. Milosevic stoutly denied Kljuic’s testimony. The prosecution produced half a dozen highly placed witnesses who supported it.2 The most important was Yugoslavia’s last prime minister, Ante Markovic, who testified that he confronted both presidents with reports about their agreement. Milosevic quickly confirmed the agreement. He argued that Bosnia was Tito’s artificial creation, and that Muslims were converted Orthodox believers. Tudjman defended the agreement, claiming that Muslims were Catholics who had been forced to convert. In either view there was no such thing as a separate Bosnian Muslim identity. Markovic asked the same questions of both leaders, “Do you think this will be so simple? Do you think you are able to do this without a bloodbath?” Milosevic responded that Serbs and Croats made up the majority of Bosnia’s population, so there would be no conflict. Tudjman likewise denied that the division of Bosnia would lead to conflict, because “Europe would not allow a Muslim state in its heart.” He repeated an old saying, “Bosnia falls quietly.” The witness said that he told each president he would do everything in his power to

prevent the destruction of Bosnia. Milosevic repeated that nothing would happen, but when Markovic insisted that war would break out, he said only, “Then we will see what we are going to do.”

In early 1992, when Milosevic declared that Serbia and Montenegro were the only remaining Yugoslav republics, President Alia Izetbegovic of Bosnia demanded that the JNA either reconstitute itself as the Army of Bosnia or leave Bosnian territory. The JNA refused to do either, proposing to remain in areas dominated by Serbs. This confirmed that it was no longer the army of the Yugoslav peoples but solely that of the Serbs. The situation continued to deteriorate, but Bosnia was not prepared for war. It lacked an army and weapons and, at the time, was only defended by the Bosnian TO, the Patriotic League (the military arm of Izetbegovic’s political party, the SDA), and some criminal gangs. Given that the JNA had collected all weapons belonging to local TOs and only returned weapons to the Bosnian and Croatian Serbs, the Bosnian Army (abih) had to start from scratch. An arms embargo imposed by the UN disadvantaged the Bosnians even more, so they violated it clandestinely. During cross-examination of Stjepan Kljuic. Milosevic produced a document purporting to be Izetbegovic’s request for weapons from Slovenia. Kljuic explained: “That is not unnatural. You don’t suppose, I assume, we stood around waiting to be killed by the JNA instead of looking for a way out by securing weapons. Personally, had I had a chance I would have asked the devil for weapons to defend myself.” Milosevic asked about the role of the mujahideen in the Bosnian army. Kljuic, though disagreeing about the number of mujahideen, nevertheless agreed that they were present as of 1993 and “inflicted enormous damage” to the Bosnian cause.3 With their arrival, he said, the Bosnian army lost its multiethnic character. He pointed out, “The arming of Croats and Muslims was child’s play according to what the Serbs had and armed the Bosnian Serbs with.” In any event, the fledgling Bosnian state was in no position to defend itself from the Serbian juggernaut. In a matter of weeks Serbian forces took 70 percent of Bosnian territory, while “cleansing” it of its non-Serb population. Bosnia put together a decent infantry over the next three years and was able to retake 20 percent of its territory in 1995, when the internationals stepped in and forced a negotiated settlement. By virtue of that settlement, known as the Dayton accords, the Bosnian Serbs held onto Wa r C o m e s t o B o s n i a   213

Bosnia: The Charges In the Bosnia indictment the prosecution charged Milosevic with twenty-nine separate counts under the icty statute, covering crimes of genocide, complicity in genocide, violations of the laws or customs of war, grave breaches of the Geneva Conventions, and crimes against humanity as a member of a joint criminal enterprise or as a superior responsible for the acts of his subordinates for crimes committed in forty-seven municipalities in Bosnia. Allegations of genocide were made for eighteen municipalities. Unable to produce evidence for all sites due to time constraints, the prosecution selected fourteen sites on which to focus, including seven for genocide. The seven municipalities were Brcko, Prijedor, Sanski Most, Srebrenica, Kotor Varos, Kljuc, and Bosanski Novi. Bijeljina was added during trial. For a number of the sites (Brcko, Visegrad, Sanski Most, Sarajevo, Srebrenica, and Bosanski Samac) the prosecution submitted transcripts from other trials and asked the court to take judicial notice of facts adjudicated in them.4 That left only a few municipalities on which the prosecution

focused in court: Bijeljina, Bratunac, Zvornik, Doboj, Bosanska Krupa, Nevesinje, Srebrenica, and Sarajevo. It was yet another reminder for victims, survivors, and the interested public that a leadership case can never tell the full story. Many heartrending experiences disappear quietly from the public record. The charges covered the following acts committed in Bosnia between 1 March 1992 and 31 December 1995: —persecutions of thousands of non-Serbs, primarily Bosnian Muslims and Bosnian Croats, based on political affiliation, race, or religion; —extermination or murder of civilians; —prolonged and routine imprisonment; —establishment and perpetuation of inhuman living conditions in detention facilities; —forced labor, including at the front lines; —cruel and inhuman treatment after takeover of municipalities (sexual violence, torture, physical and psychological abuse, and forced existence under inhuman living conditions);

half of Bosnia, territory that they had taken by force from a sovereign state. War Criminal Turns Witness

Milosevic’s segue in 1992 from Croatia into Bosnia was well planned and smooth. After signing of the Vance plan, the JNA turned its attention toward Bosnia, where Radovan Karadzic and company had been preparing Serbs to take power at the local level for some time. By this time the JNA was a mostly Serbian army which Milosevic controlled. 214  Wa r C o m e s t o B o s n i a

—imposition of restrictive and discriminatory measures such as dismissal from jobs, arbitrary searches of homes, and denial of the right to judicial process; —wanton destruction of homes, cultural and religious institutions, historical monuments, etc.; —obstruction of humanitarian aid and deprivation of water for civilians trapped in enclaves designed to create unbearable living conditions; —extermination, murder, and willful killing during and after takeover of towns and villages, in detention facilities, and during deportation or forcible transfer; —unlawful confinement, imprisonment, torture, willfully causing great suffering, and other inhuman acts (brutal living conditions in detention facilities characterized by inhuman treatment, overcrowding, starvation, forced labor, inadequate medical care, and systematic physical and psychological assault, including torture, beatings, and sexual assault); —deportation and inhuman acts, wanton destruction, and plunder of public and private property; —murder, willful killing, willfully causing great suffering, cruel treatment, attacks on civilians for the siege of Sarajevo, and a military campaign of sniping and shelling civilian areas, killing and wounding thousands. In a genocidal campaign from 1 March 1992 to 31 December 1995 against Bosnian Muslims, the following acts were committed with intent to destroy, in whole or part, the Bosnian Muslim national, ethnical, racial, or religious group: —widespread killing, targeting community leaders in many territories; —killing thousands in detention facilities; —causing serious bodily and mental harm to thousands during confinement in detention facilities where prisoners were continually subjected to or forced to witness murder, sexual violence, torture, and beatings, and detaining thousands in facilities under conditions calculated to bring about partial physical destruction of the group, through starvation, contaminated water, forced labor, inadequate medical care, and constant physical and psychological assault.

The Vance plan required the JNA to withdraw from Croatia. While it eventually did so, the JNA routed soldiers originating from Bosnia, and much of its equipment and weapons, to Bosnia to establish a Bosnian Serb army (VRS). A report written by Peter Galbraith when he was advisor to the U.S. Senate Foreign Relations Committee concluded that the JNA left 85 percent of its personnel and most of its equipment with the Bosnian Serbs when it withdrew from Croatia in May 1992.5 Approximately eighty thousand soldiers “transferred” from the JNA to the VRS, while continuing to wear JNA uniforms with JNA ranks, only changing the insignia. Wa r C o m e s t o B o s n i a   215

Documents revealed that the JNA (and its successor, the VJ) trained VRS military personnel and provided officers to serve in the VRS, as it had done with the Croatian Serb Army. The officers continued to receive pay, benefits, and promotions within the Yugoslav Army system. B-127 was one of them. A Bosnian Muslim career JNA officer, he considered himself a Yugoslav long after there was any hope that the former state would survive. When the JNA withdrew from Bosnia, he remained as an officer in the newly formed Bosnian Serb army. Yet, he testified, he carried a Yugoslav military ID and continued to receive his salary, benefits, and promotions from Yugoslav army authorities through its clandestine 30th Personnel Center.6 About 90 percent of his unit did so as well. The 30th Personnel Center was subordinated to the Yugoslav army Main Staff Personnel Administration in Belgrade. With the withdrawal of the JNA from Croatia and Bosnia and the development of ostensibly new independent armies in both republics, it appeared that the JNA devolved into three separate armies: the VRS in Bosnia, the ARSK in Croatia, and the VJ (Yugoslav Army) in the newly created Federal Republic of Yugoslavia (FRY). In fact they remained essentially one. The apparently “natural” separation of the JNA into constituent nationalities allowed Milosevic to claim, as he had in Croatia, that he had nothing to do with the conflict in Bosnia; it was a civil war, and a natural phenomenon rather than the result of a well-planned strategy. The boys were just going home. What was not “natural,” however, was the continuing connection between the Yugoslav Army and only one of the former JNA’s constituent nationalities: the Serbs in the armies of the RS and RSK. As the UN special envoy Michael Williams testified, there was no indication that the Yugoslav Army “relinquished its parenting role,” since there was a continuing rotation of VJ officers through the VJ, the VRS, and the VSK. The VJ and VRS were operationally unified. According to the military expert Reynaud Theunens and a document that the prosecution produced, the two armies maintained a unified air surveillance system after the JNA’s withdrawal and throughout the war. The data link between the FRY and RS was continued, so each had automatic and immediate access to the other’s radar surveillance. Theunens testified that after the JNA withdrawal from Bosnia, the “VJ provided ammunition, fuel and other supplies to operate this equipment [that the JNA had left behind]. VJ material support to the VRS was critical during this period as the RS had almost no independent war production capability, and imports from other sources were non-existent.” The VJ general staff and the VRS main staff agreed on a plan for ongoing resupply from Belgrade to the RS, code-named “IZVOR” (source), which 216  Wa r C o m e s t o B o s n i a

regulated delivery for the rest of the war. Even after Belgrade imposed sanctions on the RS in 1994 for rejecting the peace plan backed by the Contact Group, military equipment and supplies continued to move from Serbia into the RS, according to testimony by the UN special envoy Dr. Michael Williams.7 Radar traced frequent nighttime helicopter flights between the two entities, five to fifteen helicopters at a time, he added.8 Despite establishing the VRS, the Yugoslav Army directly assisted local Serb forces in military actions against non-Serb villages.9 Documents confirmed the VJ’s participation in the Drina River Valley and near Srebrenica in early March 1993, and around Sarajevo from October 1993 to September 1994 in an operation called “Pancir.”10 Elements of the FRY army also fought alongside the VRS in the Bihac pocket. A special unit called “Pauk” (spider) was formed to fight the Bosnian Army 5th Corps. A video depicting some members of Pauk included General Mile Mrksic, former VJ Special Forces Commander, Radojica “Kobac” Bozovic of the Serbian police, and Mihajlo “Legija” Ulemek, former commander of Arkan’s Serb Volunteer Guard and the Serbian police RDB special operations unit.11 In view of all the evidence, it is difficult to look at the VRS or arSK as stand-alone military forces.12 Not only did Belgrade give material and financial support to local Serbian forces in Bosnia, as it had in Croatia; it also helped create their armies, supplied them with officers, coordinated actions with them, paid salaries and benefits, and participated in combat operations against a sovereign state.13 The picture that emerged was of a huge apparatus, consisting of the JNA/ vi, arSK, VRS, Serbian police (MUP), Serbian TO, local territorial defense and police forces, and paramilitary units. The various military organizations may have had separate names, but they operated as part of a single, coordinated entity. Not all elements participated at the same time in the same operations, but they had the same goal and direction—creating ethnically pure territories that would one day be connected. Milosevic—as president of Serbia, head of the most powerful Serb political party, and most influential man in the region—did not stand apart, ignorant of this vast apparatus. He stood de jure at the head of the chain of command over Serbian MUP forces that fought in Croatia and Bosnia as part of combined forces under the JNA. In addition to controlling the JNA by controlling the rump federal presidency and top military officers, he also exercised de facto control over the VJ after its formation. In this way a once-proud army, whose mission was to defend the Yugoslav peoples and their multiethnic state, turned into a force that assisted in pitWa r C o m e s t o B o s n i a   217

ting those people against one another, destroying not only Yugoslavia, but the reality of multiethnicity itself. According to one expert witness, Dr. Robert Donia, that was the plan. B-127, the one-time JNA career officer, concluded his testimony by explaining why he had remained in the JNA after Yugoslavia disintegrated: “If that country were to be formed again tomorrow, I would not mind laying down my life for it.” Quite a number did, and as Stjepan Kljuic testified, the tragedy was that “Milosevic formally advocated Yugoslavia and did everything for it to cease.” In Their Own Words

The most startling evidence linking Milosevic with the VRS came from its chief, General Ratko Mladic, and Milosevic himself. Morten Torkildsen, a financial analyst who testified about the complex financial dealings involving Serbia, the RS, and RSK from 1990 to 1995, produced some of it from the compendious documents he reviewed. Torkildsen cited a report from December 1992 by Mladic in which he bragged, “Our Army is one of the rare ones in history to have started a liberation war with a very solid material base especially as concerns combat hardware, ammunition, and food reserves.” Speaking at the RS Assembly session of 15–16 April 1995, Mladic disclosed Serbia’s continued material support of the VRS throughout the war. But Milosevic’s own written admission provided the bedrock to support Torkildsen’s conclusion. In 2001, before he came to The Hague, Milosevic was arrested by Serbian authorities for misappropriation of public funds. To counter the accusation that he had appropriated FRY customs receipts for personal or political use, he declared in a written statement that the money was used to fund the RS and RSK armies. The transactions did not show up on the FRY ledger, he wrote, because they were a state secret. Milosevic’s statement was produced in court during Milan Milanovic’s testimony in the Croatia phase of the trial.14 Designed to exonerate him of one crime, it incriminated him in another, much more serious one: knowingly providing financial, logistical, and material support for a criminal purpose—the forcible removal of nonSerb populations from large areas of Croatia and Bosnia. At the tribunal Milosevic admitted having sent the customs money to the RS and RSK, but maintained that he did so for humanitarian assistance. A statement by Radovan Karadzic contradicted him: “Without Serbia nothing would have happened, we don’t have the resources and would not have been able to make war.” Karadzic’s statement came to the court from a transcript 218  Wa r C o m e s t o B o s n i a

of the RS Assembly session of 10–11 May 1994, a tiny portion of the ten thousand pages of RS Assembly meeting transcripts that the prosecutor obtained from Karadzic’s former secretary, who also served as Assembly secretary, and from the RS Ministry of Justice. The transcripts were the mother lode, showing Milosevic’s concrete support for the RS war in Bosnia and his intimate involvement in RS policy making. They included Karadzic’s astounding admission that he ordered the military attack on the safe area of Srebrenica, an admission with profound implications for Karadzic’s responsibility for the genocide that followed, as well as discussions about the siege of Sarajevo in which Assembly members acknowledged intentional attacks against the civilian population and infrastructure. Most of the transcripts were from closed sessions of the Assembly, not intended for the public. Dr. Robert J. Donia, a historian whose academic work focused on Bosnia, reported on the transcripts.15 Donia began his testimony by pointing out passages that identified the overall goal of the Bosnian Serbs as a unified state for all Serbs. At the session of 10–11 May 1994, an Assembly member, Aleksandar Buha, said, “[O]ur primary option is unification with Serbia, and if that doesn’t fly, then independence.” On 1 October 1993 Karadzic stated, “[W]e must propose the complete unity of the Serbian people, including Yugoslavia, the RSK, and the RS.” The Assembly president, Momcilo Krajisnik, indicated on 11 August 1992, “I personally think that the Serbian Republic of BH is a temporary state that will exist until the situation allows all Serbian lands to unite.” He continued, “This is not an agreement just among us, but among us and Serbia, and us and the Krajina, etc.” These statements by Bosnian Serb leaders stood in sharp contrast to Milosevic’s argument that he never sought more than equality for Serbs within their political jurisdictions. He denied pursuing a policy for Greater Serbia or an enlarged Serbian state. Not only did the Bosnian Serb statements contradict his position; his own statements at the time did so as well. One of the first excerpts Donia provided was from the session of 5 May 1993, at which Milosevic addressed the Assembly, arguing for acceptance of the Vance-Owen peace plan. He emphasized the continuing connection that would exist between the RS and Serbia if the plan were adopted, though it placed the RS in a separate state. “Since you are an Assembly, you probably know that we made a united system of money transfer. . . . that we are going to stabilise the entire unified area of economy, in which those Serb lands shall belong economically, culturally, educationally, and in every other aspect. . . . [D]o not tell us that you feel abandoned. To us who felt your worries Wa r C o m e s t o B o s n i a   219

all the time. And we did not only mentally feel them, but we solved them and helped with all our powers and with all our capacities, for the cost of great sacrifices of the 10 million people of Serbia. We shall continue to help you, that is not disputed.” For Milosevic Vance-Owen was not the end of the struggle but represented a shift in strategy, since he believed they had obtained all they could through violent conflict. The Bosnian Serbs were not convinced. Despite his passionate plea, the Assembly rejected the plan. And despite the rejection, Milosevic’s own words testified to Serbia’s support for the RS. But these were spoken behind closed doors and were not for public (especially international) consumption. In cross-examining Donia, Milosevic focused attention on the public speech he had given immediately preceding the one quoted above. In it he identified the goal as achieving equality and freedom for the Serbs, which did not require all Serbs in one state; nor did the Vance-Owen plan. In his initial speech he used the term “freedom and equality” eight times, while not mentioning it once in his second, private speech. Milosevic read aloud in court nearly the entire text of both speeches, a process that he clearly enjoyed. He explained the references in his second speech to continued bonds with the RS. “I am talking about reciprocal solidarity and links that should continue, regardless of an independent BosniaHerzegovina, links between the Serbs.” He added that even the Dayton agreement provided for the possibility of special ties between Serbia and Serbs in Bosnia. Donia responded that the speeches given in 1993 were two and a half years before Dayton, and that Vance-Owen did not include a concept of special relations. He concluded, “The description of economic integration is not a description of economic integration between two sovereign states but between Serbs and Serb lands. . . . [Vance-Owen] is only partial realization of the goal.” Milosevic, he was saying, spoke out of both sides of his mouth. On the one hand he gave a public speech palatable to the international community (Vance-Owen, which left the Bosnian Serbs outside Serbia, would have resolved the conflict). On the other, he assured the Bosnian Serbs that he did not consider Vance-Owen a final resolution and that Serbia would continue working toward their ultimate goal. He did not explicitly identify their shared goal, Donia suggested, because it was already understood in the RS. In contesting the witness’s assertion that the second speech had been in closed session, Milosevic said that it was carried live on radio and that both it and the first speech were published in the newspaper. As it turned out, the second speech was leaked despite precautions for secrecy. The prosecution 220  Wa r C o m e s t o B o s n i a

produced a witness, a Serbian journalist, who had sneaked a tape recorder into the Assembly room. Nenad Zafirovic, of Radio B-92 in Belgrade, testified that he subsequently aired a selected portion on the radio because it included Milosevic’s admission that Serbia was involved in the war in Bosnia, contrary to his oft-stated denials. Zafirovic’s testimony contradicted Milosevic’s argument that he intended his second speech to be publicly broadcast. It was clear that he had not. To achieve a unified Serb nation, according to Donia’s report, the Bosnian Serbs adopted six strategic goals on 12 May 1992, at the same session at which they established the Bosnian Serb Army. The first goal was separation from the other two nationalities in Bosnia (Croats and Muslims). The remaining five goals consisted of elements necessary to achieve the first, as well as to unite with Serbia: eliminating borders between Serbia and the RS, connecting majority-Serb areas, dividing Sarajevo, and securing access to the sea. The transcripts show that the Bosnian Serbs relied on Serbia, the FRY, and Milosevic. Mladic provided particularly revealing evidence when he addressed the Assembly about sources of weapons and military equipment at the session of 15–16 April 1995: From the beginning of the war to 31 December 1994, a total of 9,185 tons of infantry ammunition has been expended. 1.49% was self-produced, 42.2% came from supplies inherited by the VRS and withdrawn from enclaves and kasernes [barracks] of the former JNA; 47.2% was provided by the Yugoslav Army; and 4.9% was imported. At the present we have 9.69% of the total needs for 1995. . . . We have expended 18,151 tons of artillery munitions, 26.2% of it from production, 39% from supplies, 34.4% provided by the Yugoslav Army, and 0.26% imported. At the present we have 18.36% of the needs for this year. As for anti-aircraft ammunition, we expended 1,336 tons. We secured none from production, which means we didn’t produce one shell, one bullet, . . . 49.7% came from supplies, 52.4% were provided by the Yugoslav Army, and 4.9% came from imports.16 We have 7.89% of the needs for this year.17 In other words, the JNA and VJ provided nearly 90 percent of identified VRS military needs. Zoran Lilic, former FRY president, said that the figures were a bit high and that Mladic was prone to exaggerate. Even so, he did not deny that the Yugoslav Army provided assistance throughout the war. According to the transcripts, intertwined governmental structures supported the military assistance that Serbia and the FRY provided to the BosWa r C o m e s t o B o s n i a   221

nian Serbs. Assembly members discussed a parallel office of economic cooperation and referred to the daily exchange of intelligence information by the security services of the RS, the FRY, Serbia, Montenegro, and the RSK. At a session on 28 August 1995 Karadzic acknowledged, “[G]entlemen, you must know that we have created a structure that depends on Yugoslavia and that is tied to Yugoslavia in pay, pensions, use of arms and ammunition, etc., and though we have paid for a good part of it, we have received a good part.”18 In April 1995 Karadzic had confirmed that the JNA provided the RS with officers for its army and was involved in setting it up. “We asked [the JNA] for Mladic and said that they should set up the headquarters as they saw fit, we wouldn’t interfere.”19 Jovo Mijatovic stated at a session in May 1993, “We accepted nearly all officers from the Federal Republic of Yugoslavia.”20 Paramilitaries from Serbia were also described in the transcripts as taking part in military operations in Bosnia. In a session in December 1993, Vojinovic responded to a charge that paramilitaries in Brcko had murdered a military policeman. “In the city of Brcko itself, those who committed excesses were certain members of the VRS who are not paramilitary formations, but have entered the ranks of the VRS; it’s just that they bear different markings; those are the so-called Red Berets. In conversation with the commander of the Brigade, I learned that those boys are intended for some special offensive operations and certainly have a certain beneficial status in our city, and perhaps . . . they created those excesses, because they haven’t fought in awhile.”21 According to earlier testimony, the Red Berets did not act without orders from the SDB, which had created them. The date of December 1993 in Vojinovic’s comments was important, as it contradicted Milosevic’s contention that the Red Berets were not formed until 1996. A session in October 1995 provided another revealing colloquy about the role of paramilitaries from Serbia in RS military action. Delegate Nedic said, “At this time we cannot expect help that we enjoyed the entire time from Yugoslavia. . . . That means military volunteers and material assistance. . . . Those volunteers that Zeljko Raznjatovic leads as patriots, I have heard that they achieved success, but in his presentation General Milanovic said he would not accept this kind of help, which amazes me. I think that those units, I assume they are under command of the VRS rather than free-standing or independent units.”22 Delegate Duric took exception, “Arkan serves Belgrade’s policies, as far as I know, otherwise he wouldn’t exist. In a true state, such a paramilitary formation [as his] would not exist. In his function he did not come to help us, but to do the bidding of Belgrade.”23 As it had in Croatia, the army was forced to rely on paramilitary groups, 222  Wa r C o m e s t o B o s n i a

including Arkan’s Tigers and Seselj’s Chetniks, because of widespread desertion and draft resistance. They left a trail of carnage across northeastern Bosnia, where town after town fell to the Bosnian Serb onslaught. Serb forces included the TO from Serbia, according to B-1493, a high-ranking former JNA officer who testified for the prosecution. The use of Serbia’s TO was important evidence, since a republic’s TO could only be deployed outside the republic with its president’s consent; in the case of Serbia, Slobodan ­Milosevic. To aid the army’s assumption of control in the region, paramilitaries used terror to force non-Serbs out. So-called specials were given liquidation lists of community leaders. The prosecutor Dermot Groome introduced a telegram to the Second Military District Commander responsible for Zvornik, a town in northeastern Bosnia, from his close friend, the public railway company director. The man reported that Arkan, whose forces were attacking the area, had given the local people an ultimatum to lay down their weapons. “I don’t think the ultimatum will be accepted. I believe this will lead to an unprecedented massacre of the unprotected and innocent population and to horrible environmental consequences. . . . I send this dispatch as a cry to heaven and appeal to you in line with the most illustrious traditions of the Yugoslav Army and highest moral norms of our peoples to protect the endangered population from catastrophe such as they have never before experienced in their history.” The commander wrote a note across the telegram: “Inform General Jankovic to take all measures to protect the citizens in Zvornik.” When Groome asked B-1493 whether measures had in fact been taken to protect the citizens, he responded, “We know what the result was of Arkan’s activities and other units attacking Zvornik. Practically, not a single unit of the JNA was activated to prevent it.” In fact paramilitaries were an important part of the military campaign. Within a matter of weeks the Bosnian Serbs controlled 70 percent of Bosnia. In these excerpts from the RS Assembly sessions during the war in Bosnia, we hear the voices of the Bosnian Serb leaders themselves. Since the sessions were private, the members’ discussions were candid and revealing. Their revelations about Serbia’s and Milosevic’s role in the war against the Bosnian Muslims were a critical element in the prosecution’s case. The transcripts corroborated testimony about military support from the beginning of the war, including weapons, equipment, army officers, special paramilitary units, intelligence, police, and economic assistance. They revealed that Milosevic was active in making decisions, including decisions on military operations. And they underscored that Milosevic’s and the Bosnian Serbs’ shared goal Wa r C o m e s t o B o s n i a   223

was to have all Serbs in one state, a goal that they could only accomplish by moving non-Serbs out. It was the goal of the joint criminal enterprise alleged by the prosecution. These voices from the past provided some of the strongest evidence that the prosecution had thus far presented connecting Milosevic to the war in Bosnia. “Now We Can Color Bratunac Blue”

The Bosnian Serb politician Miroslav Deronjic was an important witness for the prosecution. In the first half of the 1990s he was president of the Bratunac crisis staff and Radovan Karadzic’s close ally. In that position he committed war crimes and crimes against humanity. After the ICTY indicted him he reached an agreement with the prosecutor and pleaded guilty to one count of persecution (a crime against humanity) for ordering an attack on unarmed Bosniak civilians in Glogova, Bratunac Municipality, in 1993, leaving sixtyfive dead and the town destroyed and “cleansed” of its non-Serb population. Part of the plea agreement was to tell what he knew at pertinent trials. Milosevic’s was one of these trials. After testifying about the transfer of weapons and equipment from Serbia to the RS, in which he participated, Deronjic spoke about the SDS plan to divide Bosnia, ethnically cleanse areas of their non-Serb populations, and form an enlarged Serbia with the Republics of Serbia and Montenegro. The SDS was the vehicle that brought Bosnian Serbs to power in the RS. In the spring of 1991 the SDS leadership called local leaders to a meeting in Sarajevo. Karadzic told the assembled gathering that for all intents and purposes Yugoslavia no longer existed; as a result, the only option for Serbs in Bosnia was a “Greater Serbia.” “He also mentioned that if Bosnia were to leave Yugoslavia, then the only option would be the division of Bosnia and Herzegovina,” according to Deronjic. Milosevic denied any Bosnian Serb plan to separate. Bosnian Serbs were excluded by the actions of the Bosnian Muslims, he said.24 While Deronjic agreed that Serbs were effectively excluded, he did not agree that they made no plan themselves. In fact the SDS made extensive plans for the future of the Bosnian Serbs. Deronjic recalled an informal gathering that he had with Karadzic and various prominent SDS leaders at a restaurant where Karadzic announced an agreement that Bosnia would be divided. “He didn’t explain where this was agreed and what was agreed. He only said it like that.” The dinner took place a month after the meeting of Milosevic and Tudjman at Karadjordjevo. From August to October 1991 Bosnian Serbs formed autonomous regions, giving rise to an infamous ethnic map of Bosnia on which local leaders 224  Wa r C o m e s t o B o s n i a

marked the existing ethnic composition of their municipalities. At a meeting on 19 December 1991 of the SDS in Sarajevo, Karadzic unveiled another phase of the plan. Each municipality was designated variant A (blue) or variant B (red), depending on whether its Serb population was in the majority (A) or minority (B), and instructions were given to local SDS leaders accordingly. “The instructions identified precise steps to be taken within the respective municipalities in order to establish Bosnian Serb control,” Deronjic explained. Bratunac was a variant B municipality. Immediately on Deronjic’s and his delegation’s return to Bratunac they took steps to implement the instructions. They formed a crisis staff (Deronjic was selected president) and a local Serb assembly in preparation for Serb assumption of control. The next phase was military action to take control of the municipalities. According to Deronjic, it followed a similar pattern in Bijeljina, Visegrad, Zvornik, Skelani, Bratunac, and Srebrenica. “Volunteers” from Serbia would arrive and provoke unrest, including intimidation and killings. Then the JNA arrived to “introduce order.” The army’s presence, Deronjic said, further intimidated the local Muslim population and was followed by ethnic cleansing. “These events in fact caused the transfer of population in the Podrinje region. I’m fully convinced that none of these events were coincidental: all these events were planned, they were an integral part of a plan.” The arrival of the volunteers before the outbreak of any conflict, Deronjic asserted, was further evidence of a plan. Equally, the JNA’s appearance and intervention on the side of the Serbs supported the conclusion that events were not spontaneous. Deronjic described further implementation of the plan in Bratunac. On 17 April 1992 a uniformed and well-equipped group of young men and a few women arrived in Bratunac. At a meeting with representatives of the Muslim population, the group commander gave them an ultimatum to withdraw from all organs of power in the municipality. The Muslims drew Deronjic aside and asked if he could guarantee their safety. He said he could not, nor could he provide permits for them to leave the area. He “might have been insolent to them,” he told the prosecution. At the time Deronjic was fully in favor of the plan. Later that night the volunteers, with intent to create panic in the population, “were driving madly around town, shooting, turning their sirens on, and basically creating chaos all night long.” The local population watched as the volunteers drove cars loaded with looted goods across the bridge into Serbia. Within a few days, according to Deronjic, a group of Bosnian Muslims commanded by Naser Oric, twenty years old but already a legendary figure Wa r C o m e s t o B o s n i a   225

Backa Palanka

Vukovar

CROATIA

Sid VOJVODINA

N

Bosanska Gradiska Prijedor

V. Kladusa

Brcko

Banja Luka Bihac

REPUBLIKA SRPSKA

Tuzla

Kljuc Zepa

Mrkonjic Grad

Jajce

Travnik

Zenica

Livno

BOSNIA-CROAT FEDERATION

Jablonica

SERBIA

Zvornik Kladanj Kamenica Bratunac Vlasenica Bajina Basta

Kiseljak

Kupres

Knin

CROATIA

Bijeljina

Doboj

Sarajevo Pale Trnovo Konjic

Visegrad

Uzice

Gorazde Foca

Split Mostar Nevesinje

Brac Hvar

Stolac

Ploce Korcula

Neum

Trebinje Dubrovnik

0

10

20

30 mi

0 10 20 30 40 50 km

MONTENEGRO Niksic

Bileca

ADRIATIC SEA

Tivat Herceg-Novi

Podgorica Kotor Cetinje Budva Bar

Bosnia-Herzegovina, 2009, showing division into Bosnia-Croat Federation and Republika Srpska

revered by Muslims and feared and hated by Serbs, set an ambush in which most of the volunteers were killed.25 When Oric withdrew, another, smaller group of Serbian volunteers replaced them. Deronjic went to Bosnian Serb headquarters in Pale to convey the results. “I reported that Glogova had been partly destroyed and torched to a large extent and that the Bosnian Muslim population had been forcibly removed. After making this report, those assembled in the conference room applauded . . . and Velibor Ostojic [a top SDS official] commented ‘now we can colour Bratunac blue.’ ” Having testified to JNA support for the cleansing operation, Deronjic then revealed the extensive SDB involvement through its special Red Beret unit. 226  Wa r C o m e s t o B o s n i a

As early as April 1991 Predrag Spasojevic of the SDB came to the region to train small groups as the nucleus of the first paramilitaries in Bratunac. He had good contacts with the JNA, according to the witness. In June, with Serb civilian delegations from municipalities throughout the region, Deronjic was called to a meeting of the Territorial Defense, at which Franko Simatovic spoke. Frenki explained that he came with orders from “the highest level of military, political, and state circles of Republika Srpska and Serbia.” The SDB would set up a series of training camps in all municipalities with instructors from its special units. The local civil authorities were to secure facilities and provide logistical support. Since the RS had already established its own army, one of its commanders asked who was to command these new formations. “Mr. Franko Simatovic told us that it was a special structure, that he was in command of it, and that each camp would have its own commander.” It was separate from the VRS, but “he said that they would naturally cooperate” with it. Simatovic assigned to the local authorities the task of recruiting trainees. He also had operational command of an air base established in the area under General Ratko Mladic’s command. The directive to establish local paramilitary units headed by the SDB was carried out. Instructors from Serbia participated with their trainees in combat operations in Bosnia. Deronjic learned that the Serbian interior minister paid the instructors and that Serbia supplied them with special weapons (with night vision, infrared rays, etc.). Later, when Deronjic tried to expel these instructors, Mladic prevented it. Deronjic reported that members of the unit committed crimes against the local Serb population as well as nonSerbs. They looted Serb property and arrested and tortured Serbs. “The torture was severe. I experienced it myself. It included electrical shocks and forcing people to eat 1 kilogram of salt a day. . . . People were severely beaten up with baseball bats. . . . Some people were forced to eat paper because they didn’t like some of their statements.” 26 Except for this one account, Deronjic was otherwise reticent about his own arrest, detention, and abuse at the hands of the paramilitaries. The witness described seeing the JNA’s paratroop brigade from Nis, Serbia, at Konjevic Polje after its takeover by Serb forces. The JNA Valjevo Corps also entered Bratunac to assist with cleansing the area of non-Serbs. Were it not for the intervention of General Philippe Morillon of UNPROFOR at Srebrenica, the onslaught of combined local Serb, JNA, SDB, and paramilitaries would have taken the entire region in 1993. In July 1995 Bosnian Serb forces finished the job, with tragic consequences. Deronjic’s information on Serbian involvement in the war in Bosnia was Wa r C o m e s t o B o s n i a   227

detailed and extremely useful in the case against Milosevic, who at every opportunity repeated his stock denial: “Neither Serbia nor I had anything to do with the war in Bosnia.” Deronjic’s testimony substantially undermined Milosevic’s defense, as had the transcripts of Karadzic’s and Mladic’s statements to the RS Assembly. Deronjic was there, he participated, he saw what was happening. Not only did Serbia supply weapons, but its state security service (directly answerable to Milosevic) trained and commanded paramilitary groups to wage war in Bosnia. Deronjic’s testimony gave voice to the substantial written evidence showing that Serbia was a major player in the Bosnian war. It could not have been so without the full knowledge and participation of its president.

Witness B-1701 remembered Miroslav Deronjic as a boy. He was friends with his father. He had not seen the boy since he went away to school. In May 1992 Deronjic returned to the village of Glogova with JNA soldiers. The witness saw him on two occasions when he ordered the men of the village to turn in their hunting rifles and assured them that there was no reason to fear, because the rifles would be returned to them eventually. The men were given receipts. The third and last time the witness saw his former neighbor, Deronjic was in uniform and stood watching other uniformed men massacre dozens of villagers. One of them, Jusuf, spoke to him directly, “Surely, neighbor, you won’t kill me. We went to school together. I have two small children. You know yourself I am an invalid.” A masked soldier fired three shots into Jusuf’s chest while Deronjic, the former village schoolboy, stood impassively by and did nothing. B-1701 lived all his life in Glogova, a village of 750 houses and about 2,000 inhabitants in the Bratunac Municipality of Bosnia. The villagers, an ethnic mix of Serbs and Muslims, had lived together peacefully for decades. This changed suddenly in 1992 with the arrival of Yugoslav Army soldiers, the disarming of non-Serb civilians, and the arming of Serbs with automatic rifles. Though it was nearly eleven years past, 9 May 1992 was a day that witness B-1701 would never forget. It was the day he was beaten with an ax handle on his head and back. It was the day he watched his friends and neighbors massacred. It was the day he nearly died, the day he became the sole survivor of a group of men murdered at the riverside after carrying the slain bodies of their friends and dumping them in the river. It was the day he lay in the river himself for four hours among the bodies of his friends, with only the tip of

228  Wa r C o m e s t o B o s n i a

his nose and one ear rising out of the water. It was the day he survived, just barely. While he could not remember exact numbers or the prior statements Milosevic asked about, B-1701 remembered clearly being ordered to kneel by the river, hearing the order to fire, and turning to see his friend’s head blown off. He remembered clearly the feel of another friend’s brains splattered against his neck and how he found a piece of it caught in his shirt when he got up four hours later. He witnessed a uniformed woman cold-bloodedly murder a man she obviously knew who was in a wheelchair. She taunted him: “Camil, where do you want me to shoot you? In the back of the head?” She put two bullets in his back and one in his head, and blew off his nose. Then she killed his nephew, who was attending him and pointed her still smoking pistol at B-1701. She pulled off her mask and drank “two to three fingers” from a bottle of brandy. He remained inexplicably alive. Traumatic events have a way of searing the memories of those who experience them—sometimes consciously, sometimes subconsciously. The trauma does not exist at an isolated moment in time, but continues into the future until someday, for the lucky ones, it might be laid to rest. B-1701 saw what no person should see. He experienced what no human should experience. When he related to the three tribunal judges what he had seen and experienced, his voice broke. He apologized. He was reliving 9 May 1992 in all its horror. While telling one’s trauma to others may have a healing effect, it is nevertheless painful and distressing. Add to that being questioned about it by someone you feel is primarily responsible and the distress becomes acute. Though Milosevic said he would bear in mind the witness’s circumstances, his often irrelevant questioning was too much for B-1701. When Milosevic persisted in asking about the Bosnian Party for Democratic Action in which the witness had no involvement, he responded, “I’m really very upset.” Judge May lectured Milosevic, “The witness has described the massive execution of civilians. It is a waste of time to discuss politics. . . . You aren’t saying there is some political justification for the crimes?,” he asked incredulously. The witness’s tension increased as Milosevic turned to the events of May 1992 and began asking him about the hunting rifles that were collected. “I’m trembling,” B-1701 cried. “You’ve got me all upset. You’re asking questions that shouldn’t be.” Whoever contributed to tensions in the region— whoever had guns, stole them, or armed others—was irrelevant to the fact that JNA soldiers engaged in a massacre of civilians. Not one soldier did anything to protect any of the villagers or stop the killing. Both action and

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inaction are war crimes. Judge May said that B-1701 could ask for a break whenever he needed it; there would be a limit to cross-examination. Milosevic attempted to show that the witness could only identify one person, Miroslav Deronjic, and that none of those who took part in the killing could be identified as members of the JNA because although they were in JNA uniforms, they wore stockings over their heads. “Do you know that the JNA didn’t wear socks on their heads?,” he demanded. The witness took the opportunity to confront Milosevic: “We lived as brothers in the old days, when we used to say Comrade Milosevic. Everything changed when you came to power.” B-1701 was the first witness to testify about the massacre in Bratunac. The prosecution would produce other witnesses to provide details that he could not remember and against whose testimony his would be measured. Regardless of details, however, B-1701’s testimony reminded everyone what the trial was about. War Crimes

When B-129 took the stand the prosecution had already introduced substantial evidence of Serbia’s support for the Bosnian Serbs in the form of RS Assembly minutes, Milosevic’s admission to Serbian authorities after his arrest, and testimony of the former Karadzic confidante Miroslav Deronjic. B-129 provided a close-up view of paramilitary operations under SDB authority. B-129 was a secretary in the headquarters of Arkan, whose Tigers were involved in some of the most brutal operations of the wars in Bosnia and Croatia. She saw and spoke with Arkan regularly from 1993 until the Tigers were “disbanded.” The witness testified to Arkan’s connection to the Serbian MUP: “Arkan would always say that without orders from the SDB [Serbian State Security] the Tigers were not deployed anywhere.” She described a chain of command from Arkan to Franko Simatovic and on up to Jovica Stanisic, head of the SDB and Milosevic’s right-hand man. During operations, and they were frequent, Arkan’s men joined SDB units and took orders from SDB commanders. Referring to conversations with Arkan’s personal secretary, with whom she shared an office, the witness testified: “She always said Frenki was in charge of the unit for Special Operations and he could decide about certain things but without the approval of Stanisic he could not make a decision.” While she stopped short of identifying a direct link to Milosevic, it challenges credulity to believe that an autocratic ruler did not know what his secret police were doing. Moreover, the police expert Dr. Budimir Babovic concluded that Milosevic maintained direct contact with the heads of state 230  Wa r C o m e s t o B o s n i a

security and public security, bypassing the interior minister, well before he signed a secret decree in 1997 making the link official.27 In unequivocal language the former secretary described an intertwined relationship between Arkan and the SDB that included regular telephone and radio contact, as well as exchanges of soldiers. She identified the voices of Arkan and Milorad Ulemek (“Legija”) on an intercepted telephone conversation concerning a joint operation involving both of them, in which they refer to “Stinkers,” a code name for the SDB. All operations occurred in Croatia and Bosnia. B-129 described many in detail, including the names of SDB officers who led them, where and when they occurred, and the number of SDB and Tigers killed or wounded. She testified about the financial and material support that the SDB gave the Tigers, describing how during one operation in Banja Luka, Arkan handed her three to four million German marks to pay the salaries of his men. The money, he said, came from the SDB. B-129’s extensive testimony was corroborated by the contemporaneous diary that she kept. The members of Serbia’s secret police were not the only ones supporting the Tigers. According to B-129, the VJ did so as well. “The Guards were often told to contact [General Dusko Loncar, in charge of the VJ in Eastern Slavonia in 1995] because he supplied us with weapons, fuel and part of the money from the VJ.”28 Following the secretary to the stand, a former member of a Yugoslav army unit popularly known as the Scorpions testified that he flew missions into Bosnia to assist operations being conducted there under Frenki’s command.29 As a practical matter, the witness said, Simatovic was in charge of VJ personnel as well as Serbian police and paramilitary forces operating in East Central Bosnia. Yet another source of money was Arkan’s smuggling operation. When the prosecutor asked B-129 if “trafficking in alcohol and tobacco was Arkan’s business in reality,” she agreed. Despite Milosevic’s best efforts over several hours, he failed to sway witness B-129 from the core of her testimony: the Serbian State Security Service directed the combat operations of Arkan’s Tigers in Bosnia and Croatia. One tactic he used to try to discredit her was to suggest that someone must have helped prepare her testimony, because it was not logical that a person in her position could have remembered details from so long ago. His arrogance backfired, giving the witness the opportunity to add to her direct testimony and explain why she had come forward: “I have to tell you that you over there, had you worked over there, you would have remembered things your entire life, because to bury 12 young men who were fighting for the Serbian people is a very difficult thing, and that is why I wanted to say what I know, Wa r C o m e s t o B o s n i a   231

because it would appear that the war boiled down to smuggling and that those young men had died for no reason whatsoever.” If B-129’s motives were not crystal clear from this exchange, Milosevic gave her another opportunity when he challenged her claim that five thousand Krajina Serbs who fled the Croatian army onslaught of 1995 were arrested in Serbia in September–October 1995. It was merely a mobilization of RSK members, he said. But witness B-129 would not go along with his distortion: “[T]hat was not the army of the Republic of Serbian Krajina. Those were refugees . . . who had fled to Serbia in August, after the Operation Storm of 1995.” In Serbia the refugees were sought everywhere, “in coffee bars, in the streets,” she explained. They were arrested and imprisoned in Sremska Mitrovica, then sent to Arkan’s training camp in Erdut to prepare for fighting on the front lines, as the army intelligence agent Slobodan Lazarevic and a Chetnik paramilitary (C-47) also testified. Milosevic countered that the RSK considered the refugees deserters, and that they were mobilized to fulfill their military duty. To this cynical statement the witness responded, “I personally do not consider them deserters because, after the Operation Storm in August 1995, those people lost everything. And if you had seen them at the camp in Erdut, you would share my opinion.” It was this kind of cynicism and disregard for ordinary people that motivated an ordinary secretary to confront the power behind the machinations that caused so much suffering. During her years in Arkan’s office she heard and saw horrible things. From wounded Tigers, no longer fit for combat, she learned of the brutal torture and murder of Muslim prisoners. She testified how one form of torture left an indelible imprint in her memory—the anal rape of a Muslim prisoner with a bottle. In addition to the stories she heard of Tiger and SDB military operations in 1991 and 1992, B-129 provided crucial testimony about an operation in which they engaged in 1995. In the critical month of July sixty to seventy Tigers joined the SDB at Treskavica in Bosnia, under the command of Vaso Mijovic, to cut the Muslim communication lines with Sarajevo. This left the Bosnian capital cut off from the rest of Bosnia, including the safe areas, Srebrenica among them. It aided Mladic and his forces in not only taking the enclave but ethnically cleansing and massacring thousands of Muslims without interference. It was like shutting the door to a death chamber. From Jugoslav Simic, one of the Tigers who took part, B-129 learned that SDB members tortured most Muslims they captured, then killed them. During the defense case Nice produced a series of orders and a videotape that made nearly unassailable the prosecution’s contention of Serbian involvement in Srebrenica. 232  Wa r C o m e s t o B o s n i a

Milosevic attempted to capitalize on B-129’s distinction between looting and smuggling, insinuating that the prosecution’s investigators had tried to get her to accuse Arkan of having tolerated looting by his troops. “So I think that you owe this to your dead commander so that his name shouldn’t be slandered and that things should not be attributed to him that he didn’t do.” The witness appeared to have less regard for her “dead commander” than Milosevic expected, as she promptly snapped, “I don’t owe him anything.” It is ironic that in the trial of a man who reportedly did everything for power, the testimony of an ordinary secretary provided a key piece of evidence that might have convicted a dictator had the trial been completed. Together with the RS Assembly transcripts, Milosevic’s admission to the Belgrade police, and what Deronjic had to say, the secretary’s testimony left in tatters Milosevic’s carefully constructed defense that he had nothing to do with the war in Bosnia.

Bijeljina, strategically located between Serbia and the Krajina, was one of the first battlegrounds of the Bosnian war. Battleground is a bit of a misnomer, since Bijeljina fell to Serbian forces headed by Arkan in no more than a few days. Bosniaks were able to mount only a light defense, barricading two roads. They were greatly outnumbered by Arkan’s forces, which included the White Eagles, reservists, civilians, soldiers, and others, well armed and equipped with mortars, cannons, and heavy artillery. Protected witness B-1003 was the first witness to testify in open session about events in Bijeljina. An employee of the MUP in Bijeljina, he was away on the night of 31 March 1992 when Arkan’s forces surrounded and assaulted the town. By the time he returned the next day, fighting was all but over and many people were dead. The witness saw the bodies of forty-eight people lying in the streets, all wearing civilian clothes, none with weapons. They ranged in age from ten to seventy years. He testified that more people were killed, but their relatives had already buried the bodies. The day after the fighting, local police officers were required to take a loyalty oath to Serbian authorities, and non-Serbs were dismissed from certain posts. Reports once sent to Bosnian authorities were now sent to Serbian authorities. A shipment of Serbian police berets and badges arrived soon after, and it became mandatory for local police to wear them. According to B-1003, Arkan and the local crisis staff were linked from the very beginning of the conflict. Together they gave instructions to the local police. B-1003 also identified Ljubisa Savic (“Mauser”), whose paramilitary Wa r C o m e s t o B o s n i a   233

“Panthers” were trained by the Red Berets, as the crisis staff commander, and said that everything went through him.30 After the fighting, police of Serb ethnicity were given a list of local Bosniaks to arrest. All were owners of local businesses of some significance. Every mosque in the town was destroyed. B-1003 testified that he arrived on the scene of one destroyed mosque and was able to determine that it had been mined with explosives and blown up.31 Milosevic’s cross-examination revealed his defense: Muslim extremists started the fighting in Bijeljina by erecting blockades; they fired on and killed Serbian civilians from machine gun nests and sniper locations; and the conflict was a local one in which local authorities requested Arkan’s assistance, neither the Yugoslav army nor the Serbian police took part, and both the police and the army of the RS were multiethnic and therefore not trying to ethnically cleanse the region of non-Serbs. The witness either disagreed with his propositions or said that he lacked information. Bijeljina was the beginning of a campaign of ethnic cleansing, terror, and genocide that swept across Bosnia and lasted four years. For his success in ridding Bijeljina of its non-Serb population Arkan received a kiss, recorded on camera, from the RS presidency member Biljana Plavsic.

In an inexplicably brutal cross-examination, Milosevic attempted to impugn the credibility of witness B-1054, a woman who had survived and witnessed the burning alive of about seventy-five people in a house in Visegrad. His reason for repeatedly attacking her credibility by pointing out discrepancies in details among previous statements and testimony was not initially apparent. But when the amicus Branislav Tapuskovic followed suit, Judge May stopped him to ask, “How are we assisted by the fact there are discrepancies? Her overall account has not been challenged by the Accused. There were people in the house. It was set fire to. They were burned. Precise detail doesn’t matter much.” Milosevic strenuously objected, stating that he was indeed disputing the occurrence of the event. “No one in Serbia has ever heard of it,” he said, insisting that the prosecution would have to prove it. The prosecutor did just that in another case before the tribunal, this one against Mitar Vasiljevic. Though that trial chamber found that there was insufficient evidence to place Vasiljevic at the scene of the massacre, they also found that the massacre did indeed happen—in much the way that witness B-1054 testified. The transcript of her testimony in Vasiljevic’s trial was admitted into evidence in Milosevic’s trial, as permitted by Rule 92 bis D. She appeared at Milosevic’s trial for cross-examination. 234  Wa r C o m e s t o B o s n i a

On 10 June 1992 the Muslim village of Koritnik, near Visegrad, was attacked and the villagers were told to leave. The next day its residents gathered a few possessions and set off for Visegrad, where they took refuge in an abandoned house on Pionirska Street, as directed by a police officer. Wet from the rain, they changed clothes and shared tea and coffee, when some of their Serb neighbors, Milan Lukic, Sredoje Lukic, Milan Susnjar, and (according to the witness) Mitar Vasiljevic, arrived and ordered them to put all their cash and jewelry on a cloth on the table. They also moved the women into another room, where they forced them to strip naked and dance. Then two women were taken out and returned sometime later, one with bite marks over her body. The Vasiljevic court found that they had been raped. The villagers (women, children, elderly men) were moved to another house. The door was locked. A rug on the floor had been soaked with fuel. An incendiary device was thrown in and the room burst into flame. The witness was near a window and managed to push her thirteen-year-old son through it before her. She was wounded in her left arm and left leg. Hiding in a nearby sewer ditch, she heard screams and cries for help for several hours. “It is unbearable when I think about it,” she told the court. “I feel distressed, terrible, painful.” After three days and nights in the sewer ditch, she made her way to safety. Six members of her immediate family died in the fire. She did not know that her son had survived until five years later. To show discrepancies in her story, Milosevic used three prior statements she gave (in 1995, 1998, and 2000), as well as the transcript of her testimony in Vasiljevic’s trial. In one statement she failed to mention that she had taken her jewelry when she left home, while in another she said she had turned over money and jewelry on demand in Visegrad. A hospital discharge paper indicated that she stayed ten days, while her statement said that she was there for twenty-two days. The witness testified that she was shot in the arm and leg, but the discharge paper indicated that she was shot in the shoulder and had multiple fractures in the arm (in court, she offered to show Milosevic her wounds). She could not identify the source of the bullet or shrapnel that hit her. Milosevic insisted that it was unclear from her prior statements what started the fire—the fuel-soaked carpet, the incendiary device, or someone shooting into the room. The witness clarified that the incendiary device was thrown into the room with a lit fuse which caught the carpet on fire; then Lukic shot into the doorway to prevent anyone from leaving. None of these discrepancies, where they existed, concerned the essence of her story. As the court explained in the Vasiljevic judgment, minor discrepancies do not discredit a witness’s testimony “where that witness had nevertheless Wa r C o m e s t o B o s n i a   235

recounted the essence of the incident charged in acceptable detail.” A court considers that the passage of time can affect memory—whether by obscuring once-remembered details or by bringing forgotten details to light. Witnesses’ statements also reflect what questions were asked and not asked, as well as their phrasing. The trauma of the events also plays a role. When Tapuskovic demanded to know why her statement from 1998 did not include an incident described in her statement from 1995, in which she recalled witnessing a bearded “Chetnik” slaughtering women and children while others threw them into the water, she answered, “All this happened. I do not have any more forbearance to go on recounting it. The river was red with blood.” Tapuskovic commented, “It is simply impossible for you to fail to mention this.” To which she responded, “I omitted a lot of things. I simply cannot stand speaking about them anymore. I am overwhelmed with sadness and anguish.” While permissible during argument to the court, comments on a witness’s testimony by counsel are inappropriate during examination. In the final analysis it is the consistency with which a witness renders core events that is important. Neither the accused nor the amicus discredited the essential elements of B-1054’s account. Indeed it seems wholly incredible that someone would fabricate such a story—and recount it time and again under extremely stressful conditions. At the end of the witness’s testimony Judge Robinson lectured both the accused and the amicus. When examining a witness about alleged discrepancies in her statements so as to suggest that she is fabricating an event, the suggestion should be put to the witness directly, thus allowing her the chance to respond. The judge might have added that harsh and repeated questioning on peripheral matters can also be considered badgering a witness—which a court should not permit.32 In the case of B-1054, the aggressive and misdirected cross-examination failed to discredit the witness or damage her testimony. It did not assist the court, nor did it assist Milosevic’s case. What it did do was subject a brave woman to further distress, a woman who obviously believed in the rule of law and the possibility of justice—or she would not have traveled thousands of miles from her village to confront those she held responsible. Document Scam

ICTY rules require the prosecutor to turn over exculpatory evidence to the accused.33 Nice and his team prudently provided Milosevic with any evidence that could possibly be construed as exculpatory. Milosevic used many of these documents in cross-examination and his defense case. They were 236  Wa r C o m e s t o B o s n i a

such a good source that he or his supporters may well have planted documents with the prosecution which would be given to Milosevic as required. He would then present them in court, announcing that he received them from the prosecution, as if that attested to their authenticity. Of course it did not, particularly when the documents that landed in the prosecution’s mailbox lacked any indication that they were authentic. One such document was a letter stating that President Alija Izetbegovic of Bosnia called the leaders in Srebrenica together in 1993 to discuss a proposal by President Bill Clinton. The letter reported that Clinton promised UN intervention on behalf of the Bosnian government if “Chetniks” were allowed into Srebrenica to kill five thousand Muslims. It did not say what the president could hope to gain from such a ludicrous proposal. Milosevic produced the letter while cross-examining Ambassador Peter Galbraith, who scoffed at any possibility that it could be authentic. Nice informed the court that the prosecution interpreted ICTY rules to require disclosure of any potentially exculpatory documents even when they clearly appeared to have been fabricated. Another questionable document that Milosevic introduced during crossexamination of B-1505 from Visegrad was titled “Report on Genocide and War Crimes against the Serbian People in Visegrad in 1991 and 1992.” It was addressed to the state prosecutor by the public prosecutor in Visegrad and dated 15 March 1993, well after the events it purported to relate at a time when the SDS had exclusive power in the region. The witness did not consider it a credible source. Judge May also expressed concern, pointing out that such self-serving documents produced by one side of the conflict and created after the fact are “inherently unreliable.” Judge May’s two colleagues disagreed and admitted the document without authentication. In the following week the court admitted similar unauthenticated documents. These “official notes” were written by unidentified agents of the RS police four years after the events alleged to have occurred. The witness whom Milosevic questioned about them, Mustafa Ramic, former Mayor of Brcko, said they were fabricated. Another document that Milosevic produced included a list of 284 names, all Bosnian Muslims from one village, who allegedly joined the 108th Brigade of the Bosnian Army on 1 May 1992, the day the war began in Brcko. It was meant to establish that there was a conflict between two armies rather than an attack on a civilian population by Serb forces. Ramic called the document a fabrication, since the 108th Brigade did not form until 17 May. He also pointed out that it was not signed by any official and could have been written by anyone. It was dated 7 November 1995. Wa r C o m e s t o B o s n i a   237

Again, despite any proof of authenticity and with indications of falsification, the court admitted the documents. Milosevic also submitted indictments and judgments against Ramic for war crimes allegedly committed in 1992. Ramic had never seen any of the documents until the prosecutor showed them to him shortly before his testimony. Nor had he heard about the criminal proceedings against him until well after he was found guilty in a trial he did not attend. Ramic testified that he had never been arrested or served with an indictment or summons. These documents too were provided to Milosevic by the prosecution, as required by ICTY rule. The court continued to admit unauthenticated and highly questionable documents into evidence “for what they’re worth.” The admission of potentially fraudulent documents into the trial record was aided by the ICTY’s liberal evidentiary rules. Rule 89 C provides, “A Chamber may admit any relevant evidence which it deems to have probative value.” As another trial chamber noted, the tribunal’s regime is one of “extensive admissibility.” Such laxness is permitted because professional judges, not lay juries, are the fact finders, and it is thought that they can distinguish between reliable and unreliable evidence. As a general matter, a document may be authenticated by testimony of the person who made it or by someone who knows and can verify the signature of the maker, if the maker is unavailable. If it is a regularly kept record, a keeper of records like it can attest that it bears all the indications of being such a record. The rules limit admissible evidence to what is relevant and has probative value. In other words, evidence must tend to prove or disprove something in the case. The rules provide an overall caution. “In cases not otherwise provided for . . . , a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” The essential principle of law here is truth seeking, the very purpose of the trial. That principle is not aided when potentially fraudulent documents are accepted into the record. The rules also give the court the authority to request verification of the evidence’s authenticity, and to prohibit admission of evidence if doing so “would seriously damage the integrity of the proceedings.” ICTY jurisprudence allowed trial chambers to admit unauthenticated documents into evidence. Admission does not mean that the court considers the documents trustworthy or authentic. In reviewing all the evidence, the court decides how much weight, if any, to attach to each piece. Where a document has not been authenticated, the court may give it no weight at all. 238  Wa r C o m e s t o B o s n i a

Judge Robinson expressed his concern about the mandatory disclosure rule, stating that it “does not necessarily achieve fairness for all parties . . . and is impractical and unduly onerous.” He called for its revision to prevent doing an injustice to the accused. The rule may also do an injustice to the public. Anonymous sources can flood the prosecution with fabricated material that appears potentially exculpatory and that must then be turned over to the accused. The material not only has the potential to overwhelm the court by its sheer volume but, if the court admits the material without requiring its authentication, has great potential to work a fraud on the court, undermining its truth-seeking function and discrediting it in the eyes of the public. The way to assure that this is not done is for the court to require that documents received into evidence be authenticated or, at a minimum, show some indicia of reliability.34 When the Milosevic court accepted questionable evidence in a misguided attempt to be fair to an unrepresented accused, it made its job of truth seeking more difficult. The court remained unmindful of Milosevic’s history as a ruthless autocrat for whom others’ rules meant nothing. Judicial objectivity and fairness do not require ignorance of wellknown facts. It would not have violated the court’s duty for it to view questionable evidence with a suspicious eye and apply well-established requirements to assure reliability. Indeed, doing so would have enhanced the court’s ability to uphold the integrity of the process.

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C o n c e n t r at i o n C a mp s a n d S a f e A r e a s Chapter 10

Abuse, Torture, and Death in the Camps

In July 1992 news stories of concentration camps, death camps, and Bosnian Muslims packed into cattle cars erupted from the pages of Newsday, followed by televised images of emaciated prisoners behind barbed wire broadcast throughout Europe and the United States.1 They provoked memories of Nazi camps in the Second World War and an outraged public response. It drove the UN Security Council to create the ICTY in early 1993 to show that the international community was doing something about the inhumanity being perpetrated in Bosnia. This was shadow dancing meant to stifle any call for military intervention, which states were unwilling to sanction. The camps proliferated throughout the theaters of war. Though the Serbs operated those most visible, they were not alone in holding prisoners, largely civilians, in deplorable conditions. Mileka Malesevic was a survivor of a Croatian concentration camp. The experience led her to assist women refugees and to become involved in the Alliance of Detainees of Bosnia-Herzegovina. The Alliance was established on 25 August 1996 to systematize information about former camp inmates in Bosnia, whatever their ethnicity. Malesevic testified about the 651 camps in Bosnia that her organization had documented to that time. The alliance’s records were based on lengthy questionnaires completed by camp survivors. Each account was verified four times before being accepted. Informed by thousands of interviews, the alliance established that at least 100,000 people of all ethnicities, but primarily Bosniaks, were held in camps from 1992 to 1995. Other organizations claim that there were 200,000. The “camps” consisted of any place where people were

held en masse, including school buildings, utility facilities, and garages, as well as prisons. The witness testified that conditions in the camps were horrendous. In addition to starvation rations and a lack of hygiene facilities, prisoners were subjected to sixty-three forms of abuse. Malesevic identified them in a written statement, some of which Nice read in court. A madman’s nightmare, they included cutting off heads, roasting a prisoner on a spit, cutting off body parts with a chainsaw, tearing off genitals, forcing prisoners to tear off genitals of another detainee, forcing prisoners to eat body parts, inciting animals to kill detainees, salting wounds, engaging in sexual maltreatment of men, women, and children, removing organs, and forcing prisoners to eat feces. Malesevic testified that the alliance had verified these witness and survivor accounts. Survivors would verify some in court. Added to these descriptions of sadism were photographs of men in extreme states of emaciation. Malesevic testified that the majority of victims whose stories the alliance had verified were Bosniaks, just as the vast majority of camps (520 of 651) were Serbcontrolled. Milosevic scorned both Malesevic’s personal experience in a Croatian camp and her testimony about the existence of Serb-controlled camps, which he said “made monsters” of the Serbs. He refused to allow that people are capable of extreme evil, as history tragically attests, or that leaders—people behind desks—were at least responsible for providing the opportunity for sadism, if not knowingly setting it in motion. Milosevic pressed the witness about the lack of information on Serb prisoners and Muslim-run camps in her testimony. She responded that the alliance continued to gather information and had recently formed relationships with ethnic Serb organizations of camp detainees to exchange information. To Milosevic’s claim that there were 420 Muslim-run camps where Serbs were detained, Malesevic said she was unaware of this. “We should complete our task together. It would be a step toward reconciliation,” she replied. Milosevic attempted to discredit Malesevic and the alliance by asking how many Serbs were members. She said that the alliance had Serb members but she did not know how many. Nice asked if there was any reason for the alliance to break down its membership by ethnicity, given that it was a multiethnic organization. “No. I don’t think there is,” she replied. Tapuskovic asked the witness if she had photographs of the physical abuse and torture reported by survivors, such as the tearing off of genitals. Malesevic responded incredulously, “How could you have a photograph?” Though she said the material evidence of torture could be seen on the victims’ C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   241

bodies as well as read about in eyewitness statements, Tapuskovic pressed her to admit that the alliance did not have “a single photo to corroborate” the stories. On reexamination Nice clarified what Tapuskovic had confused: prisoners were not in a position to take photographs when the crimes were committed; the crimes were committed “far from public eyes”; the witness could obtain photographs of old injuries, and medical reports were included with the majority of cases. Despite significant trauma a number of Bosniaks who experienced brutality and torture in the camps came to The Hague to tell what happened to them. Their stories do not make light reading, but their suffering pleads with us to listen. By hearing them out, we will not change their experiences, but we will acknowledge them as real and worthy of outrage, and stand with those brutally victimized and against their torturers. Alija Gusalic became a special target of Serb brutality after he rode a horse to the Café Serbia in Bijeljina, intending to throw a grenade into the café where Serb paramilitaries were gathered. He was bent on taking revenge for the grenade tossed into the Café Istanbul two days before, which injured Muslim and Serb patrons. Before he could act Gusalic was shot in the leg and taken to hospital, where he remained while war came to Bijeljina. After three days Serb forces took control of the hospital. From then on, instead of being treated Gusalic was brutalized. Over the next many months events unfolded like a horror movie, with one terrifying event following another, seemingly without end. Gusalic and three other men from Bijeljina were taken to Batkovici Detention Camp. The beatings were so severe that one man died the first night and another a few days later. Authorities placed Gusalic in a ten-member group called “specials,” who were routinely beaten. They were available to be beaten by anyone passing through the camp. They were beaten at least four times a day: at breakfast, at lunch, at dinner, and at midnight when they were beaten into unconsciousness. The group was segregated from the rest of the camp of about two thousand prisoners. When one died, another prisoner replaced him. Gusalic suffered broken ribs, a broken spine, starvation, and maggot-filled wounds all over his body. He lost nearly half his weight, which decreased from 110 kilos (240 pounds) to 59 kilos (130 pounds) during his time in detention. Four times he was taken for dead and removed for burial, only to be returned at the last minute after he moved a hand or leg. He was forced to eat straw and to have sex with other men. When the Red Cross visited, the group of “specials” was hidden, as were elderly men, children, and the one 242  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

woman captive. All but two of the two thousand detainees in Batkovici were civilians. In September 1992 Gusalic and the other “specials” were transferred to a detention camp at Doboj, where treatment was better. On arrival he was able to see himself in a mirror. “I got a fright. I didn’t look like a human being at all.” A little more than a year later, he was exchanged for Serb prisoners of war. Gusalic testified that he continues to suffer pain in his chest, arms, and back, has contracted diabetes, and is plagued at night by memories of the torture. Milosevic hardly touched on the brutality that the witness experienced, focusing instead on who was responsible for starting the war in Bijeljina and establishing that Muslims fought in the Bosnian Serb Army. Midway through cross-examination Judge May admonished him for dwelling on “side issues”: “The witness has given very serious evidence of what happened in the camps. If you challenge it, you should cross-examine him about it. If not, we’ll accept his evidence.” Milosevic then produced two documents disclosed to him by the prosecution. One was a report by the International Committee of the Red Cross (ICRC) prepared after a visit to Batkovici Camp, the other a media account by Reuters. Both described an ordinary detention center with prisoners in apparently good health. Gusalic testified that when the ICRC visited, he and other “specials,” as well as the elderly and children, were hidden, some of their places taken by guards. Even using his most aggressive and at times abusive style, Milosevic was unable to shake Gusalic’s testimony. After what Gusalic survived in the camps, confronting Milosevic must have seemed like a cakewalk. He might even have savored the opportunity. At one point Gusalic turned to the accused and said, “Shame on you, Mr. Milosevic.”

Two camp survivors testified back to back on 2 and 3 December 2003. Ahmet Zulic described how difficult the experience of testifying is for survivors: “I tried to be as brief as possible and avoid pain as much as possible because you’re taking me through the same pain, I have to relive the experience. It is my duty [to testify].”2 He continued, “I can’t be 100% correct because it is very difficult when 10–11 years have elapsed. . . . Because a person who goes through something like this loses his concentration quite quickly and starts trembling.” Zulic and Sulejman Tihic were arrested, imprisoned, and subjected to C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   243

unimaginable cruelties. Their testimonies highlight conscious and unconscious survival skills that people employ to deal with extreme situations. These skills—amnesia or selective memory, loss of concentration, dissociation from their surroundings, and numbness, to name a few—can help a person to cope with the trauma, but they can cause problems in a courtroom. It is the court’s job, with assistance from the prosecutor, to sort out the truth under these circumstances—and, as important, to protect survivor witnesses from being retraumatized to the extent possible. Both men described relatively normal relationships among people of different ethnic groups in their communities before the war. Tihic denied Milosevic’s suggestion that the war began when Bosniaks made the decision to leave Yugoslavia: “No. When the JNA got involved is when the aggression mounted. Serbs, Muslims, Croats wouldn’t have waged war against each other without outside interference. We, as neighbors, would not fight each other.” Sulejman Tihic was the Muslim representative on the tripartite Bosnian presidency when he testified against Milosevic. At the time leading up to his detention he was president of the Bosnian Party for Democratic Action (SDA) in Bosanski Samac. Tihic testified about the arrival of the Red Berets in his village by Yugoslav army helicopter about ten to fifteen days before their attack on Bosanski Samac on 17 April 1992. The Red Berets beat local Serbs who fraternized with local Croats. They cut men’s hair they considered too long and molested women. They were “masters of the war, masters of life and death,” Tihic said. Shortly after the Red Berets arrived he and other prominent Muslims were arrested. The detainees were interrogated and “so badly beaten that the local [police] commander for Bosanski Samac called the JNA and asked them to pull us all out or we would die from the beatings.” But the army was afraid of the Red Berets, according to the witness. After more interrogations and beatings in Bijeljina, Tihic was blindfolded, handcuffed, tied together with eight other prisoners, and placed in an army helicopter. An army major and one of Arkan’s men guarded them. The latter wanted to throw them out of the helicopter, but the major prevented it. In Batajnica young JNA troops guarded the prisoners. One Serb guard, Aca Ilic, befriended them, brought them beer and biscuits, and would not allow them to be beaten when he was on duty. In late May Ilic told the witness that he had volunteered to go to the front, for which JNA reservists received a bonus. This occurred after the JNA had agreed to withdraw from Bosnia, evidencing its continued assistance to local Serb forces. Tihic experienced one more Serbian concentration camp, this one at Sremska Mitrovica in Serbia. Near the end of August 1992 he was released in a prisoner exchange. 244  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

Tihic underwent a grueling cross-examination by Milosevic. After a series of questions about various acts of sabotage allegedly carried out against Bosnian Serbs, most of which the witness knew little or nothing about, Milosevic began arguing with him over his testimony. “You say you were beaten and mistreated by the JNA,” Milosevic taunted. “It sounds very improbable to me.” Judge May interrupted to give Tihic an opportunity to answer the accusation. “Yes. I was beaten by members of the JNA. Mr. Milosevic, I found that improbable, too, that children, soldiers were beating me because my name was Sulejman.” Ahmet Zulic was arrested on 18 June 1992 in Sanski Most and taken to a factory where about ninety men were detained in hot, overcrowded conditions. They were regularly beaten. Four days later, he and about twenty men were driven to Kriva Sesta. In the presence of Yugoslav army soldiers and the local SDS president, he was handed a hoe and told to start digging his own grave. As he faced the freshly dug grave, he saw Serb soldiers slitting the throats of other prisoners. A knife was drawn across his throat, causing it to bleed. Then a pistol was put into his mouth and another at his temple. When the pistol was withdrawn, it broke his front teeth. A shot was fired through his hair, but his life was spared through the intervention of one of his captors. Two other men also survived. On 7 July the witness was transported to the Serbian detention camp at Manjaca. He was severely beaten before being put in a stiflingly hot truck for transport. There was no water; people were crying for help, Zulic testified. An eighteen-year-old boy died in his lap. When the truck arrived eighteen to twenty bodies were lying motionless in it. Some showed signs of life but were left to die because the camp commander did not want to deal with them. At Manjaca, Zulic was beaten to unconsciousness, was denied adequate food (he lost seventy-seven pounds during his stay), witnessed two murders, and suffered broken ribs and injuries to his head. He was released in late November 1992. Though he was not as harsh with Zulic as he had been with Tihic, Milosevic focused on differences between Zulic’s statements and his diary. Zulic’s response was telling: “I wrote on the first page, ‘Lest Our Grandchildren Forget.’ Many things I didn’t write because I didn’t want my grandchildren to know everything that had happened to me. There would be more hatred in their hearts.” The witnesses did not leave a tidy record for the court to review. Their accounts were a bit messy, sometimes contradictory or incomplete; one lied under duress, the other omitted information to protect people. Theirs was the C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   245

testimony of survivors of horrible crimes, committed over lengthy periods when they were helpless and dependent on their torturers for life itself. That they survived was a miracle. That they came to testify before the tribunal and the world public about their experiences was courageous. One hoped that the experience was not seriously retraumatizing but provided some measure of healing. Like Gusalic before them, both witnesses gave firsthand evidence of the criminal nature of the extensive detention camp system that reached into Serbia, showing Serbian involvement in crimes in Bosnia. It was a significant achievement. Victims are sometimes discredited because of the extreme sadism perpetrated against them. We cannot believe that anyone would commit the gruesome acts they recount. DNA evidence aside, one way to get away with a crime is to make it so horrible that it becomes incredible. Whether or not that was the perpetrators’ intent when committing the acts described by the camp survivors, Milosevic argued that such monstrous acts were simply unbelievable; the witnesses had to be lying. He exposed minor discrepancies in their statements to various authorities, though such discrepancies are to be expected of anyone, let alone a person suffering psychological trauma. Tapuskovic found the camp testimony so distressing that he made a strong objection. Acknowledging that “everyone must be responsible for his acts,” he was concerned that testimony about “such horrors” would work against reconciliation. “It is my profound conviction that this Tribunal’s prime role, or one of the most important roles, is for all of us over there in those areas to reconcile. And if such stories are presented here without a single piece of evidence or proof, then one must ask what the point of all this is.” The amicus failed to consider testimony as evidence and appeared to place more emphasis on the tribunal’s role in reconciliation than in justice making. Yet justice is a necessary component of reconciliation. Unless victims of grievous crime feel that they have secured a measure of justice, there will be no reconciliation. Tapuskovic in his horror at the crimes described could not believe them, as many of his countrymen and women still cannot. Tragically, the heinous nature of these crimes does not render them impossible to commit. In seeking reconciliation, the sensibilities of the victims as well as those associated by nationality with the criminals must be taken into account. Tapuskovic’s reaction demonstrated how difficult the task would be.3 Evidence about the JNA was some of the most important for connecting Milosevic to torture and abuse in the camps because of the control he had established over the military by the time the war in Bosnia began. According to camp survivors the JNA was instrumental in taking villages and towns, 246  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

then transporting adult male civilians to camps where it turned them over to local authorities. In several cases the Bosnian Serb guards opened the camps to paramilitaries from Serbia who would beat and torture prisoners. B-1461’s testimony was fairly typical. After his village was captured, the JNA brought 174 men to a room so small the men could only stand. Soldiers took ten men out, who were never seen again. The JNA transferred the remaining men to Dom Kultura at Celopek. Ibro Osmanovic testified that a JNA unit arrived from Novi Sad, Serbia, with tanks and APCs and took over his town. They collected weapons from local Muslims. When Foca was attacked, B-1120 and twenty or thirty other Muslims sought protection from JNA soldiers, only to be taken by them to the KP Dom prison. Most witnesses said that the JNA did not mistreat civilians, but watched as paramilitaries and local TO personnel beat and sometimes killed Muslims. Safet Avdic spoke of the JNA’s coordination with paramilitaries such as the White Eagles from Serbia. Camp survivors’ testimony showed for the most part that JNA soldiers were not the torturers. They were the necessary cog putting innocent civilians into the torturers’ hands.

As the summer break approached, there appeared to be some confusion in roles in Courtroom 1. An amicus was acting like defense counsel for Serbia, while at least one judge thought that the prosecutor was telling him how to manage the case. Everyone was greatly in need of the three-week adjournment. It turned into a month when Milosevic once again fell ill. For some time the court had shown impatience with Tapuskovic’s approach to cross-examination in his role as amicus curiae. On more than one occasion Judge May reminded him that he was not defense counsel and that his cross-examination had been more akin to putting on an affirmative defense for Milosevic than assisting the court. At issue was a fundamental difference between how the court and Tapuskovic saw the role of the amicus. The court sought help in assuring that all procedural and evidentiary submissions open to Milosevic were made. Tapuskovic felt that he needed to educate the judges about Balkan history and politics, though experts were scheduled to testify on these issues. To make matters worse for Tapuskovic, he took positions on evidentiary and legal issues the court would have to decide, asserting, for example, that “amici take the position [that the war in Croatia] was a civil war,” and that there was no intention to commit crimes at the time Yugoslavia broke up. He also maintained that the Bosnian army attacked its own people in the Sarajevo Breadline Massacre in 1992 and the C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   247

Markale Marketplace Massacre in 1994 to paint Serbs as aggressors and gain international sympathy.4 While that may have been the accepted view in some circles in Belgrade, it was not elsewhere. Indeed the court majority in the Galic trial found that the mortar fired into the marketplace came from territory controlled by the SRK (Sarajevo Romanija Korps). It also held that only a “minimal fraction of attacks could be reasonably attributed to” Bosniaks firing on Bosniaks. The ongoing tension between the court and Tapuskovic erupted when Judge May chided him for repeating Milosevic’s arguments. It was too much for Tapuskovic, who responded: “I am the oldest person here and I can’t be under stress constantly as to be given instruction when and what to ask. If I can’t raise issues of this kind, then my services serve no purpose here. It has nothing to do with Mr. Milosevic here, but it has to do with questions you will have to deliberate about and make a ruling on. If I’m superfluous here, then I no longer wish to perform this role.” Judge May backed down in the face of Tapuskovic’s distress, but the problem did not go away. Given the difference in perception of Tapuskovic’s role, the growing frustration on both sides was inevitable. The court ended his services when the prosecution closed its case on 25 February 2004. The role of the amicus was not the only one that seemed unclear. Nice continued to struggle with the trial chamber over his efforts to present an adequate case against the accused, while the chamber sought to assure that the accused received an expeditious trial, whether he wanted it or not. Carefully approaching an increasingly irritable court, Nice sought its assistance to limit the time Milosevic used in cross-examining 92 bis witnesses. After more than sixteen months’ experience, it was obvious that with rare exceptions he used every minute the court allowed, whether necessary or not. It was also clear that much of his cross-examination was irrelevant and repetitive. Given the deadline that the court was facing, Nice’s request for its assistance in being more vigilant with Milosevic was appropriate. Nice approached the court in his gentlemanly style by explaining why it was difficult for the prosecution to strongly express its views without having opposing counsel willing to respond. Milosevic had shown little interest in procedural points of law and lacked the skills to argue them. The prosecutor pointed out that in a recent fifty-five-minute cross-examination, the first fifty minutes were “taken up by material to which the witness was unable to give a responsive answer.” The accused asked relevant questions only in the last five minutes. With the utmost deference, Nice invited “the Chamber to be as alert as it always is and mindful of the accused wasting time in establishing 248  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

the time for cross-examination.” Judge May replied that allocating crossexamination time and monitoring the accused’s use of it were very much matters for the court. “To shut the Accused up would be wrong,” he said, but continued, “Of course, we have in mind the problems of the Prosecution.” Judge Robinson’s intervention showed the fraying nerves in a trial that at sixteen months, was not yet half over: “I’m very offended by your submissions,” he reprimanded Nice. “They are an oblique criticism of the way the Court manages the case.” Stressing that the question was one of fairness incapable of being reduced to mathematical equations, Judge Robinson concluded, “I find your submission entirely unnecessary.” Nice responded that he was sorry Judge Robinson had reacted as he had, but that he disagreed “entirely and respectfully.” Although he understood and respected the court’s need to be fair to the accused, he asserted his own obligations to a proceeding that focused on relevant issues and did not waste time. Nice might also have reminded the court that the prosecution has a duty to present as complete a case as possible to support its indictment. If it did not, the court would make its decision on less than adequate evidence. Such a decision would not render justice. Judge May’s declaration that “to shut the accused up would be wrong” is not an accurate statement of the law, as he well knew, having turned off Milosevic’s microphone on occasion and ended his cross-examination when it was irrelevant and repetitive. The problem was the court’s overly cautious approach, taken to compensate for Milosevic’s lack of legal knowledge. Judge May’s statement reflected that. Yet the presiding officer of any court is charged with focusing the evidence on the disputed issues. While it often appeared to the public that Judge May was too heavy-handed, in fact the opposite was true. Firmer control of Milosevic would have reduced the length of the trial. Being Neutral In a Non-neutral Situation

Charles Kirudja, whose testimony is discussed in chapter 8, highlighted the UN’s major weakness in responding to the Yugoslav crisis: its insistence on being neutral in a non-neutral situation, i.e. treating aggressors and victims as if they were equally guilty. Kirudja, formerly with UNPROFOR, testified to the accuracy of reports he sent to his superiors as early as May 1992 about Serbian forces ethnically cleansing parts of Bosnia. He relayed refugee information on concentration camps in Keraterm, Prijedor, Trnopolje, Omarska, and Manjaca, where conditions were “atrocious,” including regular beatings and deprivation of food and water. General Sadish Nambiar, force C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   249

commander of UNPROFOR, telephoned Kirudja to express concern over the allegations. He politely asked, “Charles, do you really believe there are concentration camps?” When Kirudja replied that this was what refugees were telling them, the general suggested that “maybe they were detention camps.” Though Kirudja did not back down, the UN did not investigate. Not long after, Roy Gutman learned of the camps from former prisoners and broke the story in Newsday, under the headline “The Death Camps of Bosnia.” A few days later two British reporters, Ed Vulliamy of the Guardian and Penny Marshal of ITN, gained access to Omarska and Trnopolje, where they filmed the skeletal men imprisoned behind barbed wire. ITN broadcast the haunting images on television screens around the world. In a written response to his reports about Bosnian refugees streaming into his area (Sector North in Croatia), Kirudja’s superiors told him not to get involved in Bosnia. He characterized the response as “sad, though not unexpected.” Kirudja informed his staff that they would continue to respond. “We were not exceeding our concern. We were responding to people in need drawn to where we were by the fact of the UN flag flying.” On cross-examination Milosevic read a recent statement attributed to General Nambiar, stating that there was “no genocide beyond the killings and massacres on all sides that are typical of such conflict conditions.” His representative on the ground disagreed: “We did see violence from all three groups, but not of equal magnitude or weight in terms of numbers, repercussions, and impact.” Milosevic then showed a videotape of the general stating, “None of my troops ever gave me any reports of genocide. . . . There were allegations by other people, but my troops were not a witness to it and none reported it to me.” Kirudja noted that the general had very carefully limited his statement to his troops, referring to military forces while Kirudja and his staff were civilian. The general’s statement, he said, might be correct technically, but not factually.5 Many analyses and criticisms have been written about the UN role in the wars of the former Yugoslavia, including by the UN itself. This day’s courtroom drama was an apt illustration. Despite reports from their own observers in the field, UN officials continued to put events into a context that fit their mission—to observe the demilitarization of forces in Croatia while a political settlement was sought through another process. Serb crimes in Bosnia were not on the UN agenda in mid-1992. Reports of ethnic cleansing and concentration camps were inconvenient. Perhaps if they did not notice—or if they called a concentration camp a detention facility—the problem would go away. Yet avoidance is rarely a viable strategy. 250  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

In defense of the UN, it is only as good as its members and structure permit—and its members wanted the Balkan conflict contained more than they wanted a real resolution requiring more involvement than they were prepared to commit.6 At a minimum, however, they should have found another name for their mission than UN Protection Force, since they were not designed for nor capable of protecting anyone. A salve to some consciences was a deception to desperate people—and that was indefensible.

In 1993 the United Nations created six “safe areas” in Bosnia.7 Designed as enclaves within a war zone that would shelter civilians from the worst ravages of war (and, coincidentally, protect the rest of the world from a massive refugee onslaught), they more resembled prison camps than refuges. The UN established safe areas in six major municipalities burdened by hundreds of thousands of refugees8—Srebrenica on 16 April 1993, followed by Sarajevo, Gorazde, Tuzla, Bihac, and Zepa on 4 June.9 To receive protected status the safe areas had to demilitarize. The implication was that UN forces would take over responsibility for protecting the civilians. In fact the resolutions were interpreted to mean that the mere presence of UN troops as part of UNPROFOR would deter Serb attacks (it did not), and UNPROFOR was only authorized to defend itself. Moreover, UN forces once deployed were wholly inadequate to protect anyone, including themselves.10 In light of this, and the practice of Bosnian Serb forces to block access to the enclaves while routinely shelling them, it is not surprising that those in the enclaves did not turn over all their weapons. At trial Dr. Michael Williams opened the subject of the safe areas. He was the director of information for Yasushi Akashi, the UN secretary general’s special representative to the former Yugoslavia, from February 1994 to April 1995. Williams testified that Bosnian Serb forces practiced siege warfare against the enclaves. The intentional targeting of civilian populations is a clear violation of international humanitarian law. Yet the Bosnian Serb leadership was unapologetic. Williams said Bosnian Serb forces obstructed and even attacked UN convoys attempting to bring humanitarian aid into the safe areas of Sarajevo, Gorazde, and Tuzla. They shot at UN aircraft and deliberately shot at the UNPROFOR commander, killing a British soldier and an unknown number of civilians. The situation in the enclaves became dire. Civilians lacked food, medical supplies, and other necessities. According to Williams, it was all part of official Bosnian Serb policy. Together with Akashi he often had meetings C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   251

with Bosnian Serb leaders, at which Karadzic openly referred to the interdiction of humanitarian deliveries, the disruption of utilities, and the denial of medical facilities as legitimate acts of war. He justified his position by recalling UN economic sanctions against Serbia in May 1992 and Serbia’s sanctions in 1994 against the RS for rejecting the Contact Group’s peace plan.11 In a speech to the Bosnian Serb Assembly in Pale, Karadzic threatened to cut off supplies to Sarajevo’s population. “Even a bird will not fly through to them until the world lifts economic sanctions against the Serbs.” Williams described the Bosnian Serb’s siege warfare as “quite exceptional” in the “brutality and rigor” with which it was implemented. Bosnian Serb forces were not content to starve the enclaves. They carried on a campaign of shelling and sniping at civilians within them. On a visit to Sarajevo Williams witnessed a young girl shot by a sniper in what was known as “Sniper’s Alley.” The shot came from a Serb-occupied building. When Williams met Mladic to protest, the general replied, “We will always send two shells for every shell fired by the Muslims.”

Sarajevo, like Dubrovnik, had iconic status on the world stage. Host to the winter Olympics in 1984, it had international stature. But it was Sarajevo’s multiethnic character, its blend of East and West, its people of diverse faiths living amicably side by side along with secularists, that gave it a unique cosmopolitan spirit and drew people to it, Yugoslavs and foreigners alike. Sarajevo had soul. Its existence was proof that people could live together with tolerance and friendship, no matter their differences. They had been doing so for centuries.12 When the Bosnian Serbs laid siege to the city they attacked Bosnia’s soul. They went to war to divide Sarajevo by ethnicity. Though they did not succeed in wresting the city from the Bosnian government, they all but destroyed its diversity. Like a house whose foundation cracks, the city’s vision that people of different faiths, ethnicities, and races could live together in friendship was undermined. The attackers could not, of course, tear people of mixed ethnicity in two, at least not physically. Like other crime sites, Sarajevo could have been a trial in itself. In fact it was. Stanislav Galic, commander of the Sarajevo Romanija Korps (SRK), stood in the dock of Trial Chamber 1 for his command of the sniping and shelling campaign that targeted civilians in the besieged city. His trial overlapped with Milosevic’s but concluded on 9 May 2003; the trial chamber issued its judgment of guilty on five counts on 5 December 2003.13 As a result 252  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

Nice was able to submit the transcripts of some witness testimony without having the witnesses appear in court to repeat it. The court ruled that the evidence chiefly concerned the crime base and was cumulative of other evidence, and therefore admissible. Defense counsel in Galic had sufficiently tested the evidence through cross-examination, the court decided. As a result, tribunal rules did not require cross-examination in the Milosevic trial. Whatever the time saved by this procedure, it was not enough. The prosecution was only able to present evidence on one sniping incident of fortyseven charged and one shelling incident out of eleven. In addition to witness testimony in the Galic trial, the prosecution relied on eyewitness testimony of reporters and international observers, as well as on recorded comments of the Bosnian Serbs themselves, to prove the existence of a three-and-a-halfyear campaign of sniping and shelling against Sarajevo’s civilian population. At the conclusion of its case the prosecution conceded that it lacked the time to present evidence on many of its alleged incidents in Sarajevo. Still, the evidence presented was sufficient to support the charges, indicating that the prosecution could have reduced the factual allegations in the first place. To the public, however, the three-and-a-half-year siege of Sarajevo, in which ten thousand people were killed, appeared almost a footnote in the Milosevic trial. The voices of survivors were missing. When the action moved to Bosnia, JNA troops and officers leaving Croatia appeared in Sarajevo’s streets in growing numbers, bringing tanks, equipment, and heavy weapons. They took up positions in the hills surrounding Sarajevo, ostensibly to protect the city and its people. Soon Arkan, Seselj, and their boys arrived, ratcheting up an already tense situation. After the Bosniaks passed a referendum on 1 March 1992, overwhelmingly declaring in favor of independence (the Serbs boycotted), the SDS erected barricades in strategic locations on the following day, cutting off access to and from the city. Colm Doyle, head of the European Community Monitoring Mission (ECMM) for Bosnia, saw the action as evidence of advance planning. Milosevic said that the barricades were a response to the murder of a member of a Serb wedding party, the event that he claimed ignited the war in Bosnia. Doyle did not accept that an entire city would be barricaded because of one killing. When Doyle attempted to negotiate for dismantling the barricades, the Bosnian Serb he approached said he would only do so on orders from Karadzic. Within a month the JNA had taken over the airport. The shelling, which would become as “common as rain” (as one witness in the Galic trial described it), had begun. Prosecution witnesses described a relentless siege, with snipers—set up C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   253

in tall buildings and the hills surrounding Sarajevo like a noose—targeting people as if they were pop-up figures in a carnival shooting gallery. Baron Aernout van Lynden, war correspondent for SKY TV News, described finding three bodies lying in the street, each shot trying to rescue another. He and other prosecution witnesses testified that civilians were deliberately targeted when they were riding the tram, standing in line to buy bread, doing their marketing, recovering in hospital, attending school, and merely moving along the pedestrian routes. The Bosnian Serb goal was to create an unpredictable situation in which terror reigned. There is no doubt about their success. Though in the early days shelling was continuous, Stjepan Kljuic, Bosnian Croat presidency member, testified, “Real hell broke out with the arrival of Ratko Mladic.” On the day the Bosnian Serb Assembly established the RS army and appointed Mladic to head it, the general addressed the Assembly: “We are not going to say that we are going to destroy the power supply pylons or turn off the water supply, no because that would get America out of its seat, but gentlemen, please, fine, well, one day there is no water at all in Sarajevo. . . . Therefore, we have to wisely tell the world, it was they [Bosnian Muslims] who were shooting, hit the transmission line and the power went off, they were shooting at the water supply facilities, there was a power cut at such and such a place, we are doing our best repairing this, that is what diplomacy is” (emphasis added). It was clear evidence that the three-and-ahalf-year siege of Sarajevo was a well-laid plan.14 By surrounding the city and cutting off or reducing electricity, water, fuel, medicine, and food, while maintaining an indiscriminate campaign of sniping and shelling, the Bosnian Serbs operated a “spigot of terror,” the UN civil and political officer for Sarajevo David Harland testified. They turned it on or off according to how much pressure was being brought against them by the EC and the UN or their own desire for concessions. They also modulated the intensity of sniping and shelling, keeping the general level of terror high while forestalling any dramatic events that would precipitate international intervention. To prove Milosevic’s guilt for the siege of Sarajevo, it was necessary to establish who organized and controlled this “spigot of terror.” Was it just a group of young men who took their special sniper rifles with their special scopes and found a cozy place in the hills or a high-rise building from which to shoot people, perhaps during their off hours from work or family responsibilities? Or was the sniping and shelling organized, coordinated, and ordered by people higher in the military chain of command? 254  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

General Adrianus Van Baal, UNPROFOR chief of staff, concluded during his tour of duty that sniping was authorized at the highest level of VRS authority: by General Mladic, Radovan Karadzic as supreme commander, or both. The VRS, he said, had excellent military discipline; the troops would have done nothing without the knowledge of headquarters. Major Francis Roy Thomas, senior UN military observer, supported Van Baal. In the process of testifying that the Bosnian Army also used snipers who answered to their ministry of interior, Thomas asserted that sniping was controlled by “higherups” on the Serb side as well. Moreover, David Harland’s description of a “spigot of terror” turned on and off in response to international pressure was strong indication of a campaign controlled by policymakers. Since besieging a city full of civilians, including children and the elderly, is a public relations nightmare, why did the Bosnian Serbs do it? A divided Sarajevo was the fifth strategic goal the RS Assembly adopted in May 1992. Karadzic explained the purpose of a divided Sarajevo to the Assembly: “Alija [Izetbegovic] does not have a state while we have a part of Sarajevo. . . . In addition, the fighting in Sarajevo keeps the fighting far away from Krajina, far away from Semberija, far away from the Drina, far away from those areas where we could possibly have conflicts with Muslims.”15 Dr. Robert Donia added another reason—the siege was intended to isolate the city so that the government of Bosnia could not function. Raising the specter of a new Berlin Wall only three years after it had come down, Karadzic proposed constructing one in Sarajevo (this one to separate ethnic groups): “Maybe we will have to compromise but we cannot live with these people.” A campaign of terror would make Bosniaks more amenable to relocating, whether in a different city or behind a newly constructed wall. What Karadzic refused to acknowledge was that “these people” included Serbs as well as Muslims and Croats, not to mention those of mixed ethnic heritage. The prosecution connected Milosevic to crimes committed by Bosnian Serbs in Sarajevo, showing by Milosevic’s own admission and that of Bosnian Serb leaders that he provided the wherewithal to carry out the siege. David Harland reached the same conclusion. Without financial, military, and moral support from Serbia, Harland testified, the Bosnian Serbs would have lost their military advantage and been “forced to settle on terms that would have made it impossible to bring about the major relocation of populations they had been pursuing.” On cross-examination Milosevic gave him a chance to expand on his testimony. Harland obliged, stating that if Serbia had seriously limited its support to the VRS, “the siege would have been ended” without C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   255

the consequent loss of life. “The Bosnian Serbs,” he said, “relied almost entirely on Serbia for military supplies as well as its officer corps.” The JNA, controlled by Milosevic, was present and involved in the siege of Sarajevo, according to a number of witnesses. The TV reporter Aernout van Lynden described his acquaintance with an officer of the JNA and VJ who was sent to prepare a strike to cut Sarajevo in half. He also testified that snipers wore JNA uniforms, as did Mladic in 1992. Mehmed Music, a survivor, told about the presence of the JNA, the Red Berets, and Arkan’s men—all from Serbia—at the Lukavica barracks, where he was held prisoner. When Milosevic suggested that the army was there to protect them, Music responded that it was a “trick.” Ten members of his family were killed in Lukavica. Even more damning, the prosecution’s Sarajevo witnesses testified about Milosevic’s power over Mladic. General Sir Rupert Smith, head of UNPROFOR in Bosnia in 1995, described what happened in response to NATO air strikes in May of that year. The air strikes were in response to Mladic’s refusal to desist from taking weapons from collection points despite repeated warnings. Retaliating, the VRS shelled the safe areas, killing seventy-one people in a marketplace in Tuzla. After NATO’s second air strike against the VRS, the Bosnian Serbs took UN military observers hostage. They chained a Canadian to a bridge and threatened to cut his throat if air strikes did not stop. The Bosnian Serbs seized about four hundred hostages throughout Bosnia. When Mladic insisted on his right to use hostages as human shields, despite being told that doing so violated the Geneva Conventions, UN negotiators turned to Milosevic for help. All hostages were released through Milosevic’s “influence” with the Bosnian Serbs, General Smith testified.16 Milosevic complained that his efforts at peacemaking were being construed as criminal. Evidence of his influence in ending the war was also evidence of his influence in conducting it. Judge May, reformulating one of Milosevic’s questions, asked General Smith, “Did you see any evidence of the accused controlling the Bosnian Serb Army in any way, or having influence over it?” Smith answered, “I did not see direct direction of Bosnian Serb forces. But I did see his influencing and controlling hand and gave those examples [release of hostages and Dayton] and the example in the aftermath of Srebrenica.” The general’s testimony about Dayton and Srebrenica is discussed below. David Harland told the court how Milosevic stayed the hand of the Bosnian Serbs in Sarajevo and Gorazde. Judge May summarized to clarify the witness’s testimony: “[Is it your position] that on the one hand, the Serbian Government and the Accused were giving supplies to the Bosnian Serbs— 256  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

material supplies and general moral support—but on the other hand, the Accused was restraining the Bosnian Serbs where he thought it was in his interest to do so?” Harland replied in the affirmative. According to him Milosevic’s influence worked both ways. That he used it to “stay the hand” of the Bosnian Serbs in Gorazde and Sarajevo meant that he could have used it at other times to prevent the murder of civilians, ethnic cleansing, and destruction. Harland faulted Milosevic for his failure to use his influence, speaking to him directly in court: “Your acquiescence for crimes committed against the civilian population of Bosnia-Herzegovina is relatively clear.” Milosevic asked if Harland was claiming that “Yugoslavia” had command of the Bosnian Serb army. “There was supply, maintenance, and influence from Belgrade and Belgrade used that supply, maintenance, and influence to direct a number of outcomes in Bosnia and apparently did nothing to prevent, over a period of some years, shelling of Sarajevo, for example.” “Do you mean we could have done more?,” Milosevic asked incredulously. “Vastly more,” Harland replied. “The Bosnian Serbs were almost entirely dependent on Serbia, as they recognized. Had a serious effort been made to restrain them, they certainly would have been responsive. They told us so.” More explicitly, Harland testified, if Serbia had seriously limited its substantial military and financial support to the VRS, “the siege [of Sarajevo] would have been ended” without the consequent loss of life. Milosevic protested that withholding assistance would have allowed Bosnian Serbs to be killed. Over the three and a half years of the siege, ten thousand Bosnian Muslims, Serbs, and Croats living in Sarajevo died. Milosevic’s defense rested on several grounds: (1) There was no siege of Sarajevo. The killing and wounding of civilians were the results of urban warfare between two opposing sides. Significant collateral damage could be expected in any urban war. (2) Serbia was not involved. It only provided the Bosnian Serbs with humanitarian aid. (3) Bosnian fighters intentionally provoked VRS fire against civilians by shooting from civilian structures such as apartment buildings and hospitals. (4) Bosnian fighters attacked Bosnian civilians and blamed the Bosnian Serbs to gain world sympathy and international intervention. (5) Bosniaks also used terror tactics against Serb civilians and engaged in sniping against the Sarajevo Romanija Korps (SRK). (6) Criminals participated in the defense of Sarajevo. (7) Paramilitaries were responsible for any crimes committed against the citizens of Sarajevo. (8) The Bosnian government violated the arms embargo. Only numbers one, two, four, and possibly seven were legitimate defenses. In a meeting with Milosevic in June 1992, Colm Doyle of the ECMM tesC o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   257

tified, the accused expressed dismay that Serbs were unjustly blamed for everything that happened in Bosnia. He favored reopening the Sarajevo airport as well as adopting Karadzic’s suggestion that UN monitors be attached to Serb units. He insisted that no forces from Serbia were on Bosnian soil. In their meeting, Doyle reported, Milosevic agreed that the only forum for resolving conflict in Bosnia was the EU Conference. Milosevic insisted that Belgrade condemned the shelling and called for the perpetrators to be punished. Sarajevo was a Muslim city, he asserted, that Serbs should not control. Doyle later added that he assumed what Milosevic said in the meeting was what he wanted the peace conference to hear. Later, in speaking to Yasushi Akashi’s aide, Dr. Michael Williams, Milosevic questioned that Sarajevo was ever under siege. He claimed that civilian access to basic utilities such as gas and electricity remained sufficient throughout the crisis. While the horrors of Sarajevo’s siege—during which cemeteries replaced flower gardens—generated international sympathy for the Bosnian government, it did not translate into assistance that would have placed the Bosnian government on an equal footing and given it the arms needed to defend its citizens. For three and a half years Sarajevo remained under siege by the surrounding Serb forces who controlled access to the outside world. During that time ten thousand people, mostly civilians, died. Slow-Motion Genocide

Ambassador Diego Enrique Arria of Venezuela, who represented his country on the UN Security Council, heeded the cries for help from the Bosnian Muslims, even if more powerful UN officials did not. In 1993 he headed a mission to the region. Speaking to the press afterward, he coined the term “slow-motion genocide” to describe what he had seen in Srebrenica. Another witness, General Philippe Morillon, UNPROFOR commander in 1993, also visited the enclave and described what he saw: “[T]here were tens of thousands trapped by the snow and exposed to the risk in the case of the slightest shelling, of being wounded and killed in the hundreds, because . . . , as opposed to other towns, Srebrenica had no shelter. They used as food what they could collect from the trees. . . . And again, there were thousands converging there throughout the nights . . . including elderly, women and children. . . . There were many wounded. There was a young medical student who operated on the spot. . . . That is what I saw, a degree of . . . absolute misery with a real risk of tens of thousands being killed.” Alleging misinformation, cover-up, and the withholding of information at the UN, Arria testified that the UN’s failure to take decisive action against 258  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

Bosnian Serb ethnic cleansing produced a climate of impunity, permitting slow-motion genocide against the Bosnian Muslims in Srebrenica from 1993 to its culmination in 1995. He said that the “culture of impunity” started when the Bosnian vice-president, Hakija Turajlic, was assassinated in front of UNPROFOR troops who did nothing, and was reinforced every time the UN received reports of crimes against the Bosnian Muslims and failed to respond.17 Arria testified that a double standard operated for some UN members who approved intervention to protect Kuwait while doing nothing to protect Bosnia. Some of the “principals” on the Security Council feared the emergence of a Muslim nation in the heart of Europe, he said.18 When Muhamed Sacirbey, Bosnia’s UN representative, wrote letters of complaint they were “almost totally disregarded.” The UN operated under a “climate of denial” of what the whole world knew was taking place. In a letter to the UN secretary general Boutros Boutros-Ghali on 18 March 1993, Sadako Ogata, UN high commissioner for refugees, warned that “everything indicates a massive humanitarian catastrophe is unfolding” in Bosnia and that key leaders should be informed. Though he served on the Security Council, Arria first saw the letter eleven years later. He did not know whether permanent Security Council members were privy to the letter, but nonpermanent members were not. To some degree Boutros-Ghali, who was Egyptian, may have withheld the letter out of disdain for a war he called a “rich man’s war,” viewing it through the lens of decades of international disregard for Africa’s conflicts and the millions murdered there.19 Ogata wrote a follow-up letter to the secretary general. She described the situation in Srebrenica as disturbing and advised that the UN needed to immediately enhance its presence or provide other assistance to save lives. She again urged the secretary general to involve key leaders. Two days later Boutros-Ghali passed this letter on to the Security Council, Arria testified. Member states of the Non-Aligned Movement (NAM) took up Bosnia’s cause on the Security Council.20 In 1993 Bosnia filed a complaint asking the International Court of Justice (ICJ) to require the FRY to take immediate action according to its obligations under the Genocide Convention to prevent genocide in Bosnia and to insure that forces directed or supported by the FRY, or subject to its control or influence not commit genocide or incitement to genocide. NAM struggled to have the complaint recorded and acknowledged by the UN.21 Nice asked Arria if information on the UN’s inaction on potential genocide in Bosnia was available to Milosevic. He replied that it was. Milosevic C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   259

knew, he explained, because the Yugoslav ambassador used to send reports to Venezuela as well as the FRY, and “his reports were more fully informed than mine.” It was evidence, as was Bosnia’s lawsuit against the FRY, of Milosevic’s having notice that the Bosnian Serbs he was supporting were committing crimes that might include or lead to genocide. Bosnian Serb forces also prevented humanitarian aid convoys from entering the safe area, including those carrying desperately needed medical supplies. To make matters worse, they turned off water, electricity, and gas. Tens of thousands of people—residents and IDPs—were living in inhumane conditions. Arria declared that the Serbs were running a concentration camp policed by UNPROFOR. By cutting off all humanitarian aid they were in open defiance of the UN and committing “slow-motion genocide,” he declared. He did not know that the genocide would not reach its denouement until two years later. The UN mission’s unanimous report on the disaster in Srebrenica finally led the UN in May 1993 to pass a resolution incorporating the mission’s conclusion that genocide was in progress, with the potential for a massacre of 25,000 people.22 The resolution, circulated to the General Assembly and quoted widely in the media, unquestionably put Milosevic on notice. Yet he continued supporting the Bosnian Serbs, financially, militarily, and with advice and direction. Still, the UN could never bring itself to deal effectively with Bosnia. Its failure to hold the Serb leaders accountable created a culture of impunity that helped allow the genocide at Srebrenica. Despite claiming that he remained ill after more than a week off, Milosevic conducted one of his better cross-examinations when he confronted Arria. He first challenged the witness for saying that information had been withheld from him and other nonpermanent members of the Security Council, while telling the court that he knew what was happening in Bosnia. Arria replied that there were many unofficial sources of information, including permanent members of the council who would talk off record. He was, he said, in a privileged position. The problem was the lack of information from official channels, necessary as a basis for action. Milosevic turned to a statement by Arria that the international envoys Cyrus Vance and Lord David Owen, together with Milosevic, were proposing a form of “apartheid” in what became known as the Vance-Owen peace plan. It was not apartheid, Milosevic declared, because the proposed cantonization of Bosnia (division into ten provinces, largely by ethnicity) was not wholly along ethnic lines.23 That was precisely why the Bosnian Serbs, supported by Milosevic, wanted Srebrenica, Arria answered. With a Serbian Srebrenica 260  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

there would be a more complete ethnic division. Milosevic confronted the witness with another part of his statement, in which he claimed that Srebrenica was necessary for the Serbs and the UN to secure a peace deal. “In your opinion, Owen, Vance and the Security Council, with me, created the basis for a Greater Serbia. There is a lack of seriousness in that,” Milosevic said dismissively. Arria disagreed: “The outcome reflects what was intended: ethnic partition.” Milosevic asked the witness whether he knew that the present division of Bosnia into Muslim/Croat (51 percent) and Serb (49 percent) entities within a federation was the result of final negotiations at Dayton, based on a proposal by the Contact Group.24 What Arria knew, he replied, was that the “moment of Dayton” was a situation created by Serb atrocities. The Bosnians had no options and no one was going to do anything about it. “The people were ravaged, the country destroyed, subjected to genocide and crimes against humanity. Belgrade made it possible. There were no other options but for Bosnia-Herzegovina to sign. At the end, Bosnia-Herzegovina . . . was partitioned on ethnic considerations. I stand on that.” When Milosevic insisted that all his efforts were geared toward achieving peace and that this was common knowledge—“and no one can dispute that,” Arria informed the court, “We were clear, a two-pronged approach was adopted by the Serbian side. One, Milosevic entertaining endless negotiations, and two, his proxies doing the dirty work.” The result was years of dithering by the UN before the United States finally stepped in and put an end to the conflict—with over 200,000 people dead, the witness said.25 After Milosevic cited a media interview he gave in 1992 declaring that he deplored ethnic cleansing, Arria responded, “I only wish Mr. Milosevic would have lived up to what he declared.” Steven Kay, an amicus, suggested that Serb forces surrounding Srebrenica were responding to attacks by Bosnian forces from within the enclave. When he was there with the UN mission, Arria testified, the Bosniaks were very lightly armed, while the Serbs, with heavy weapons surrounding the safe haven, were in absolute control. Arria told the court that the situation on the ground in Srebrenica when he visited in 1993 was worse than the media reported. It was “unimaginable,” so bad, he told a Russian diplomatic colleague, that it was reminiscent of the siege of Leningrad on a smaller scale. When he saw it he vowed not to be a bystander. Arria testified that his mission to Bosnia recommended a substantial change in policy regarding the safe areas. Above all, the UN should make its objective the protection of civilians. This was not done, nor were the soC o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   261

called protection forces increased by the UN. Two years later, when Bosnian Serb forces attacked Srebrenica, the UN mandate was to shield its own personnel, not the civilians who looked to it for protection. Though UNPROFOR was under-resourced, limiting its ability to provide protection, it could have done much more, and in any event it need not have assisted in the ethnic cleansing that ended in genocide. Arria’s testimony showed that Milosevic was aware of the unfolding tragedy in Srebrenica as early as 1993. He was privy to warnings that it could lead to genocide, as well as to information that the situation was inhumane, a situation caused by the Bosnian Serbs over which he was seen as having influence or control. The ambassador’s testimony was also a grave indictment of the international community as it operated through its world body, the UN. Arria reported efforts to mislead as well as indifference by the highest UN officials (and some member states) to the unfolding tragedy in Bosnia. Despite lofty declarations of “never again” and the adoption of a convention obliging states to act to stop genocide, when confronted with mass crimes directed at the Bosnian Muslims the institution established to prevent a recurrence of mass killing looked away.26 Arria was one of the heroes who did not.

General Philippe Morillon was a somewhat mythic figure in the history of the Yugoslav wars of the 1990s. He was best known for going to Srebrenica in 1993 after the Bosnian Serb forces laid siege to it. Like Arria, he found a humanitarian catastrophe, with people dying from malnutrition, pneumonia, untreated wounds, and other illnesses. When Morillon, UNPROFOR commander for Bosnia at the time, arrived in Srebrenica, the Bosnian people in their desperation would not let him leave. He seized the opportunity to declare his solidarity with the besieged population, dramatically climbing onto a tank to assure the people that he would not leave until Serb forces agreed to allow evacuation of the wounded and passage of aid convoys into the enclave. Eventually Morillon persuaded his “captors” to release him so that he could seek Milosevic’s help in convincing the Bosnian Serbs. Milosevic was the only one who could control Mladic, the person who Morillon believed had real authority in the RS. When Morillon met with Milosevic, he urged him in the strongest words to help him to “attempt to save the people.” The general told Milosevic that if he failed to act, he would be blamed and world public opinion would not forgive him for what would happen in Srebrenica. Morillon went to the right man. After Milosevic’s call to Karadzic, Bos262  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

nian Serb forces soon allowed humanitarian aid to be sent into Srebrenica and some of the wounded to leave, though they continued to surround the enclave, controlling aid as well as water and power supplies for two more years. They did it even though the UN declared Srebrenica a “safe area” and placed a small contingent of UN “blue helmets” there.27 Citizens who wished to remain in the enclave were ordered to turn in their weapons. Fearing correctly that the blue helmets were not going to protect them, not everyone obeyed the order. There were also reports that the Bosnian commander of Srebrenica, Naser Oric, continued to use Srebrenica as a base from which he launched raids against the surrounding Bosnian Serb forces. The failure of demilitarization gave Mladic an excuse to continue the siege. However, Karadzic’s close ally, the civilian Serb leader in Srebrenica, Miroslav Deronjic, testified that without UN intervention, paltry as it was, the combined onslaught of local Serbs, the VJ, the SDB, and paramilitaries would have taken the entire region in 1993. Milosevic brought Morillon’s attention to a report in 1992 from BoutrosGhali, in which he advised the Security Council that the VRS was apparently not under Belgrade’s control any longer. Morillon replied that the stress should be placed on the word “apparently.” The secretary general was in New York, while Morillon was on the ground: “In reality we knew very well Belgrade continued to exert its authority on Mladic.” Milosevic depicted the Bosnian Serbs (and himself ) as desiring peace, while the Bosnian government refused all peace agreements. What he did not say was that peace at this stage would have legitimized the Bosnian Serb military victories, taking 70 percent of a UN-recognized state, which they were fighting to destroy. As Morillon said, “If you want me to say it was not in President Izetbegovic’s interest to comply [establish peace], I agree.” Milosevic concluded, “He rejected peace.” But the general corrected him, “He rejected defeat.” Morillon was adamant, however, that Serbs should not be demonized. They had been misled by Milosevic, who cultivated hatred through vicious propaganda. “Unfortunately, [fear] continued growing because people like you kept reminding people of ancestral massacres through the media.” The general also condemned “some” in Zagreb and Sarajevo who led people into this “drama.”

Shortly after Dr. Michael Williams, Akashi’s aide, arrived in Bosnia in March 1994, the Bosnian Serbs savagely attacked the safe area of Gorazde, razing two hamlets to the ground. Six hundred people died over a two-week C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   263

period. “I recall the events because I was closely involved in them in a fairly dramatic way,” Williams testified. “Serb tanks and artillery were firing directly into the safe area of civilian targets and at the building where UN officials were trying to take shelter.” In this instance UN and NATO officials uncharacteristically authorized “close air support” and destroyed the Serbian command and control position. The attack on Gorazde followed a ceasefire agreement brokered by the United States in March 1994 between the Bosnian Croats and Muslims that created the Muslim-Croat Federation in Bosnia.28 In a cable to Kofi Annan, then head of the UN’s peacekeeping office in New York, on 13 April 1994, Akashi reported that he had confronted Milosevic about the attack on Gorazde, pointing out the lack of evidence of a Bosnian offensive that could have provoked it. Milosevic claimed that the Bosnian Serb attack was a response to the accord between Washington, the Croats, and the Muslims. Attacking civilians seemed to be the Bosnian Serbs’ favored method of communication. Akashi and his staff met in Milosevic’s office with ten or twelve Bosnian Serb leaders. Milosevic acknowledged the seriousness of the situation, while Akashi focused on the need for a ceasefire. After two days they reached a six-point agreement, one provision of which was withdrawal of Serb forces to an exclusion zone. The ink could not have been dry before the Bosnian Serbs broke the agreement. Within three days of withdrawing they were back attacking the civilians in Gorazde by demolishing their water filtration plant. According to Williams, “that was not untypical of Bosnian Serb military behavior.” When Akashi complained by letter to Mladic about the agreement’s violation, he received a peremptory response from a staff member. The only relevant part “explained,” in typical Bosnian Serb arrogance, that uniformed men seen in the exclusion zone had been demobilized but just did not have any civilian clothes to put on. The safe haven of Gorazde continued to be shelled and humanitarian supplies interdicted well into 1995. The reported rationale was, “You squeeze Serbia. Serbia squeezes us. We squeeze you.” UN experience with Bosnia’s safe areas should have provided ample warning of the massacres in Srebrenica in 1995. During the Gorazde crisis in 1994, Williams described the “great misgivings and fears” of UN mission members of what might happen if Gorazde fell to the Serbs. “That substantial civilian population would be at the mercy of forces that had an appalling record of brutality of dealing with civilians under their control.” At the end of direct examination Groome asked Williams, “Were there tangible signs that 264  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

if Srebrenica were to fall that a humanitarian crisis on a grand scale would have followed?” Williams replied, “Yes. I think there were.” In particular he cited the Bosnian Serbs’ practice of targeting civilians, and the fears of those familiar with their record. “Aside from numbers,” Groome continued, “could anyone with an intimate knowledge of events in Yugoslavia have been reasonably surprised that military age men were killed?” Comparing Srebrenica to Gorazde, Williams recalled that everyone up to Akashi “was very fearful of what would happen” if Bosnian Serb forces entered Gorazde. “We concluded there would be civilian casualties, very serious gross violations of human rights. It was only a question of the extent and degree.” In light of this, the subsequent actions and inactions of the UN in Srebrenica, including Akashi’s prominent role, render the UN complicit in genocide, or at a minimum mass murder. Milosevic was a primary figure in negotiations between the Bosnian Serbs and the international community. The UN mission, including Williams, met on a number of occasions with Milosevic, who was well informed of events in the RS. He also had significant influence with the highest Bosnian Serb authorities. At one meeting, when UN officials complained that the VRS had detained a UN aid convoy on its way to Gorazde for several days, Milosevic “got ill tempered with Karadzic and told him to instruct his people in Rogatica to remove the obstacles as soon as possible,” which he did, Williams testified. Despite the FRY’s embargo against the RS, Mladic was a frequent visitor to Belgrade. “No matter what the political tensions were . . . it didn’t affect [Mladic’s] comings and goings.” Both sides, Serbia and the RS, Williams stated, “were eager that the break not go too far.” The RS leadership lacked Milosevic’s guile. Therein lay the seeds of their ultimate downfall, as they readily admitted to targeting civilians, destroying cultural and religious monuments, preventing humanitarian aid from reaching the people, and disrupting electricity, heat, and water in the enclaves. Milosevic perhaps unintentionally revealed his agreement with this approach when he equated Serb attacks on Muslim civilians with Muslim attacks on Serb soldiers, as if both were criminal. Milosevic appeared conflicted on how to approach cross-examination. On the one hand he took pride in his role as peacemaker, getting the intransigent Bosnian Serbs to agree to internationally brokered ceasefires and peace plans. In court he bragged about resolving the Gorazde crisis in 1994. On the other hand, he had to maintain that he lacked influence over them to avoid responsibility for their crimes. Referring to the Gorazde negotiations, C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   265

the accused argued, “Why should I have an 18 hour meeting, if I could just order them?” When he insisted that he could not give orders to the Bosnian Serbs, Williams curtly responded, “I don’t quite accept that.” In fact by 1994 Milosevic could not just order the Bosnian Serbs to do something and expect unquestioned obedience, as shown by their rejection of the Contact Group plan. Still, Milosevic continued to hold the purse strings that financed the Bosnian Serb military. Milosevic wanted a settlement to alleviate international sanctions that were wreaking havoc with Serbia’s economy. One can print only so much funny money. But to retain his hold on power, he also needed to support the program of the Bosnian Serbs. It was a tricky situation, but Milosevic had got out of others before. Milosevic the Peacemaker

It was Milosevic the peacemaker who struggled to emerge from nearly two days of testimony by his former interlocutor, Lord David Owen. At times the proceeding resembled a negotiating session more than a criminal trial, with Owen variously lecturing the accused, agreeing with him, and concluding, “I can’t be more helpful than that to you.” Milosevic appeared to relish the opportunity to relive the high points of his career when international diplomats considered him the key to peace in the former Yugoslavia. Owen was appointed European Commission representative for the International Conference for the Former Yugoslavia in the autumn of 1992 to broker a peace settlement in Bosnia. He and Cyrus Vance, serving as the UN representative, drew up what became known as the Vance-Owen peace plan, presented to the warring parties in January 1993, which Arria had called “apartheid-like.”29 While the parties reached preliminary agreement in Athens, it fell through in Pale when Karadzic withdrew his tepid support and the Bosnian Serb Assembly voted overwhelmingly against the plan. The vote was a humiliating defeat for Milosevic, who put his considerable prestige behind the plan, including a trip to Pale to address the Bosnian Serb Assembly in person before the vote. It was, Owen said, one of the lowest points of Milosevic’s influence over the Bosnian Serbs. Owen testified at the summons of the court, having rejected the prosecution’s invitation. He wanted to insure the neutrality of negotiators, he told the court, thanking it for affording him special treatment. He assured the judges, however, that the negotiators’ neutrality did not extend to war crimes or crimes against humanity. Owen characterized Milosevic as the “key” to any negotiated settlement of the Bosnian war. He believed that Milosevic 266  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

sincerely wanted an end to the conflict, recognizing, as the Bosnian Serbs did not, that they had achieved on the ground all they were likely to obtain.30 While Owen praised Milosevic for his efforts to secure a settlement, he also criticized him for not going far enough. He insisted that Milosevic could have cut off the supply of fuel, ammunition, and weapons on which the Bosnian Serb war depended. “What was Pale?,” Owen asked rhetorically. “A small number of people dependent for a very large part of their existence on the relationship with your government. . . . It gives you leverage.” When Milosevic protested that Belgrade had imposed an embargo against the Bosnian Serbs in 1994 for their intransigence, Owen interjected, “The question is ‘was that for real?’ Were you stopping the really sensitive supplies of military material to Mladic. . . . It is a key issue for you to explain to the Court.” Other witnesses testified that the embargo was extremely porous. Milosevic never intended to stop military supplies. At several points in his testimony Owen, protecting his diplomatic neutrality, emphasized that he did not consider any side blameless in the war; nor did he consider that there was only one aggressor and one victim. The situation, he testified, was far more complex. When Milosevic sought to capitalize on this, Owen snapped back, “I have accepted many selective quotations [by you] from my book [Balkan Odyssey]. . . . There is not an equality of evil doing. It is a sad fact—and I want it to be made abundantly clear—the Bosnian Serbs were responsible for many more cases of malnutrition, maltreatment, killing, and raping than either the Muslims or the Croats. It is an issue you have to face up to. It is understandable to defend the Serbian people, but any impartial observer in those years thought the Bosnian Serbs were offending substantially more than the others. It is why world opinion didn’t strike you as impartial. It was the pattern of violence and racism they found deeply offensive. The issues need to be raised and resolved if it is to be prevented in the future.” His diplomatic neutrality died a well deserved, if belated, death. Owen’s assessment of the character of the Bosnian Serb leadership led him to fear a massacre in Srebrenica if the VRS attacked the safe area in 1993. When he telephoned Milosevic he found that he apparently shared his concerns: “Milosevic was pleased I contacted him. He too was exasperated and extremely concerned that if the Bosnian Serb army entered Srebrenica there would be a massacre.” Owen credited Milosevic for intervening with Mladic to stop an attack. Two years later no one intervened, and thousands of Bosniak civilians and unarmed soldiers were systematically executed. Owen testified that he was strongly opposed to the safe area policy, calling C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   267

it a “disgraceful decision.” “Every member of the Security Council [who voted to establish the safe areas] knew it was not going to provide sufficient troops. They knew that the Secretary General said 35,000 troops were needed. They didn’t provide them and in part are responsible for that appalling massacre.” Milosevic quoted a statement by Philippe Morillon to the effect that he did not believe Mladic could have ordered massacres at Srebrenica. “You have met General Mladic. I assume you cannot believe it either,” Milosevic pressed the witness, demonstrating again why he needed professional representation. Owen responded, “Here we come to a very serious disagreement. . . . I don’t share that view of General Mladic. . . . It is not beyond his record of behavior to have been complicit in a massacre of Muslims. I believe he was a racist. He had many controversial attitudes about Muslims. He had a callousness and brutality about him. I would not be a character witness for General Mladic’s inability to acquiesce in a massacre of Muslims.” In his opinion, Owen testified, Milosevic was not a racist or a nationalist. While he was ruthless in his pursuit of power, he was also a pragmatist, a much preferable negotiating partner than the true believers in Pale. As matters developed, the accused could accept that Bosnian and Croatian Serbs would not be unified in one state with their mother country because of the realities of international politics—at least for the time being. But his conationals in Bosnia were not so easily swayed, particularly after taking and holding 70 percent of Bosnian territory without credible international opposition. Owen testified that the relationship between the Bosnian Serbs and their patron in Belgrade varied over time. Initially, Milosevic’s control was strong. After the Bosnian Serbs defied Milosevic by refusing to ratify Vance-Owen, his influence waned. But it was not a continuous slide downwards. The FRY embargo of goods to the RS was Milosevic’s attempt to reassert control.31 By the summer of 1995, after NATO air strikes on Bosnian Serb positions and reversals on the battlefield, Milosevic regained influence with his Serb neighbors, Owen believed. Nor was Owen able to help Milosevic in blaming Bosnian Muslims for the failure of the peace process. “I was trying to understand the viewpoint of the Bosnian Government. President Izetbegovic was under siege in his capital city. The nation with the biggest population group was pushed into 10% of the territory. There were still camps holding Muslims hostage in appalling conditions. There was continued shelling and sniping. All of which he felt with some justice that the world was ignoring. Of course he couldn’t agree to freeze the present position. It was unfair in every particular.” While he referred sev268  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

eral times to the “civil war,” when pressed by Milosevic, Owen said that the conflict had elements of a civil war but also involved fighters from Serbia, Croatia, and the VJ. “I don’t accept there were no people fighting on the Serb side who were answerable to you.” He held this view consistently, he said. By the end of Owen’s testimony Milosevic’s role as a peacemaker appeared more ambiguous than the accused might have hoped. Owen characterized him as a leader who failed, perhaps to protect his power, to use the power he assuredly had over the Bosnian Serbs to stop the war before tens of thousands more people died. Though he was aware of the brutality of which the Bosnian Serbs were capable and did intervene to stop a feared massacre at Srebrenica in 1993 (and one in Gorazde in 1994), Milosevic continued to provide the means for the Serbs to carry out that massacre two years later, when he did not intervene. To preserve his own power, Milosevic played with fire—and many thousands of innocent people got burned, losing their loved ones or their own lives.

One could almost see the lights dim and hear the violins play as the man in the dock and the man in the witness chair attempted to recreate the glory of Milosevic’s reign. “Is it true,” Milosevic asked Zoran Lilic, “that Serbia, Yugoslavia and I personally invested all our efforts to achieve peace as soon as possible?” “Yes,” replied his once loyal cohort. “The outcome was a whole series of peace plans.” Throughout negotiations during a decade of wars, Slobodan Milosevic, president of Serbia, was chief negotiator for the Serbs, wherever they lived. By law and protocol the president of FRY should have played that role. From 1993 to 1997 Lilic was the FRY president. When Nice asked if international negotiators ever sought him out, he replied, “Everything was in the hands of Mr. Milosevic, and the international community accepted that.”35 Milosevic did not have control over the Bosnian or Croatian Serbs, Lilic corrected Nice more than once. Rather, he “wielded a great deal of influence.” Milosevic immodestly asked the witness, “Do you remember who contributed the most to the leadership of the Republika Srpska accepting and signing the [VanceOwen] Plan?” “You made the greatest contribution,” his acolyte responded. The above interchange between the accused and the prosecution’s witness is emblematic of Milosevic’s cross-examination of Lilic, as well as their long professional relationship. Lilic was the loyal apparatchik from his early days in the SPS through his presidency of the FRY. He even overcame his bitterness at being ousted as the SPS’s Serbian presidential candidate in 1997, C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   269

Serbia’s Objections Keep Evidence Out of Court The long-awaited appearance of Zoran Lilic, former president of the Federal Republic of Yugoslavia, came to an end midway through the trial’s second year, after Serbia waived provisions of the federal law prohibiting the disclosure of state and military secrets. But it was not a complete waiver. The government identified subjects to which the waiver applied, and placed its representatives in court so that they could object if Lilic strayed from them. Before the first session was over, the witness was faced with a question not covered by the waiver. The controversial subject was the minutes of fry ’s Supreme Defense Council from 1993 to 1997, the period when Lilic was a member. The other two voting members were the president of Serbia (Milosevic) and the president of Montenegro (Momir Bulatovic). Lilic, as president of fry, also served as president of the sdc , which was responsible for adopting the fry ’s defense plan. The sdc president commanded the vj in war and peace—in accordance with decisions of the

sdc .

Though Lilic was

president of the sdc , he testified that Milosevic dominated the body because of his strength and because Serbia provided 95 percent of the federal budget. Bulatovic was a lackey to Milosevic. His own position as fry president was primarily ceremonial. During Lilic’s presidency the sdc held over fifty meetings, duly recorded on audiotape and stenographically, with detailed minutes made of the most important parts.32 The recordings and minutes

had been the subject of a protracted battle between the government and the office of the prosecutor. Shortly before Lilic’s appearance the government provided minutes of sixty or seventy meetings, but not full transcripts. On 5 June 2003, in view of Serbia’s recalcitrance, the court ordered it to provide full stenographic recordings to the otp , but gave it a month to do so. Unfortunately the recordings were not available in time for Lilic’s testimony.

returning to offer his services to Milosevic in 1998 to help find a solution in Kosova. When he found himself at odds with Milosevic over his Kosova policy, he was ousted again. The nostalgic love fest continued as Milosevic read from notes of a meeting in August 1995 of the top leadership of the RS and Serbia, preparatory to the Dayton peace conference. Lilic also attended the meeting. Milosevic meandered over the text, describing his efforts to convince the Bosnian Serbs that they should participate in the Dayton negotiations, occasionally asking for Lilic’s assent—which was willingly given. The witness agreed that the Bosnian Serb leadership was difficult to deal with and that Serbia had “rather poor relations” with it. At one point the RS leaders explained why they should be an appendage to the FRY, Milosevic related in court as if he were testifying. “And I say directly to their faces, ‘No, because we have had bad experiences with you so far.’ ” Lilic confirmed this. 270  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

When Lilic took the witness stand in June 2003 Nice asked, “In the absence of either a stenographic record or recordings, do you feel capable of dealing with the [sdc ] meetings?” Lilic responded, “Absolutely not. For two reasons: one, the issues are too important. It is not fair to the Tribunal or Mr. Milosevic. Two, they are highly competent documents and there has been no waiver.” Just as the otp did not get the stenographic record, neither would Serbia grant a waiver for Lilic to testify about subjects raised in the minutes.33 After a conference with the government, Nice informed the court, “Though Mr. Lilic was President of the fry within the period 1993 to 1997, [representatives

of the government] have a blanket objection to documents within that period.” Serbia essentially placed Lilic’s testimony about this highly significant period off limits to the court. It was precisely the situation Nice feared when he asked the court to intervene and help the prosecutors secure the documents they had requested more than a year before. At the hearing on 3 June 2003 he explained that not only had the government failed to provide requested material, but when it did provide the minutes of sdc meetings it made no application for protective measures for any particular document. icty rules require that such an application be made five days before the hearing on a party’s request for a court order.34

The court required Serbia to file a formal request for protective measures. Lilic agreed to return after the court made a decision. While nothing was disclosed at the time about the substance of the request and the court’s decision, Del Ponte has since revealed that Serbia asked for and received confidentiality for documents and parts of documents referring to Serbia’s role in the Bosnian and Croatian wars, as well as in the Srebrenica genocide. Serbia’s efforts to preserve the secrecy of documents on the Srebrenica genocide will be further discussed in chapter 11.

Milosevic also said he proposed giving the tie-breaking vote on the sixmember delegation to himself, because he “was the most skillful and experienced negotiator.” After describing his role in aggressively persuading the Bosnian Serbs to participate in Dayton and his insistence that they agree in writing, he turned to Lilic, “I’m asking you, was it possible to have reached Dayton if this step had not been made?” Lilic responded, “Only one thing is certain, and I have repeated it many times, there wouldn’t have been Dayton Accords without exerting this much pressure from your side.” When Milosevic noted that Lilic was nominated to head the delegation, his loyalist replied, “My name is first only de jure, and you will agree.” “I do agree,” the accused said. “My efforts were crucial.” Milosevic gave the cooperative witness an opportunity to reiterate that he had nothing to do with the Srebrenica massacre. With little prompting, Lilic testified, “I also established no one from the leadership of Serbia and C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   271

FRY could have issued such an order and we were not aware of it. I presented my view several days later [in a meeting] with you. . . . [Y]ou were more than angry, shaken.” According to Lilic, Milosevic told him at the time, “These crazy Serbs from Pale, I can’t believe they did something like this.” He continued, “No one from our side was informed of that, unless through private conversations . . . outside our day to day meetings.” Acknowledging the Srebrenica massacre, he concluded, “The Srebrenica case is truly tragic. It was done by individuals. There was no organized participation of the FRY and the leadership.” Milosevic added that the RS leadership denied knowing about it too. It defies logic to believe that the killing of seven to ten thousand people over a few days and their burial in mass graves, not to mention their reburial to avoid detection, was a spontaneous action by individual Bosnian Serb soldiers. In their eagerness to establish that Milosevic and the Serbian and FRY leadership were not involved in planning the Srebrenica massacre, both men appeared unaware of having established that Milosevic knew of the massacre shortly after it happened. If Serbian army and police were involved in the massacre, as documentary evidence later indicated, then Milosevic had responsibility to investigate and take disciplinary action, which he did not do. On direct examination Lilic testified that the FRY Government paid salaries and benefits of VRS and SVK personnel, at an annual cost of 8 million euros. He characterized the payments, which continued to be made until 28 March 2001, as humanitarian assistance to support the families of former JNA troops who remained in Bosnia and Croatia after the JNA was dissolved. They did not retire, however, but instead served in the armies of the Bosnian Serbs and Croatian Serbs. This “transfer” was accomplished through the creation of the clandestine 30th and 40th personnel centers within the VJ in 1993, which only came to light through Lilic’s testimony and the Supreme Defense Council minutes he provided. Not only did the personnel centers distribute salaries and benefits, it was through them that Bosnian Serb officers in the VRS and Croatian Serb officers in the VSK were promoted, retired, or transferred. When Milosevic asked if the VJ general staff played a command role over the main staffs of the VRS and arsK, Lilic responded, “That is simply impossible,” then added the significant qualification, “if all normative and legal decisions were abided by.” In fact, through the 30th and 40th personnel centers Milosevic controlled the officers who controlled the armies of the RS and RSK. Lilic insisted that the Serbian police were given authority over the VJ, as well as provided with more resources, though he declined to agree with Nice 272  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

that the MUP was militarized. But he drew the line with the VJ. His loyalty to the Yugoslav army conflicted with his loyalty to Milosevic and the SPS— and led to his fall from grace.36 Lilic’s conflict in loyalties grew as Milosevic shifted resources and power to the Serbian MUP. In 1993 the SDB gained the exclusive right to tap telephones, no longer sharing the information with army counterintelligence. This followed a period when most of the generals had been pensioned off and a new cadre appointed. When the prosecutor asked if the accused accepted the new appointments, Lilic responded, “He did. Had he not, they wouldn’t have been appointed. He thought that in case of any misunderstanding with the VJ it was always possible to remove the generals.” As the testimony of the one-time head of army counterintelligence Aleksandar Vasiljevic showed, Milosevic did just that in consolidating his control over the JNA despite his lack of legal authority. Lilic confirmed a significant piece of Dr. Babovic’s testimony concerning the MUP: the heads of the MUP’s Public Security Service (Radovan Stojicic, or “Badza”) and its State Security Service (Jovica Stanisic) reported directly to Milosevic, bypassing the interior minister. On cross-examination Lilic tried to help Milosevic by agreeing that all three attended meetings with the accused. Regardless, the direct connection between Milosevic and the SDB was made. Lilic was a difficult witness, as most insiders are. Throughout the 1990s he supported Milosevic and his program. He was rewarded with high positions, though little real power. When he disagreed with Milosevic over Kosova and use of the VJ he lost his positions and his access to Milosevic. Despite his bitterness at being treated so poorly, Lilic remained dedicated to Milosevic’s program. His conflicting feelings were reflected in Lilic’s testimony before the tribunal. While it was evident that Milosevic still held a kind of hypnotic power over him, it was not enough to completely win him over. If Milosevic could still exert power, he would have used it to isolate and silence Lilic as he had in the old days, rather than court him. But he lost that power on 5 October 2000. He could no longer silence those who disagreed with his version of reality. Milosevic’s display of charismatic power was itself compelling evidence of the real power he wielded even when the law did not give it to him. As he had in his first appearance before the trial chamber, Lilic on crossexamination changed his testimony to suit his former mentor with the ease of an actor changing roles. That some answers directly contradicted his earlier testimony seemed to bother him not in the slightest. Confronted with his witness’s many concessions to Milosevic, Nice had C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   273

only a short time for reexamination and a significant challenge ahead of him. He could not ask the chamber to declare Lilic a hostile witness (a witness for one party who, on the stand, testifies in favor of the opposing party), since ICTY rules did not provide for such a declaration and the court would have viewed it unfavorably. Yet he had to bring into question Lilic’s responses to Milosevic’s examination that contradicted his testimony for the prosecution. He set out to tread a cautious line, twice drawing warnings from the bench. Probing Lilic’s relationship with the accused, Nice asked who was giving instructions to whom in the efforts to get Mladic to release two French pilots he held captive and incognito after they bailed out of their plane over Bosnia in August 1995. Lilic responded, “Our fear was that the Accords would not be signed and Milosevic insisted that I should issue an order to Perisic that he try to establish the location of the pilots. I was not giving instruction to him. He used his right through me to bring influence to bear on the Yugoslav Army.”37 It was an explanation as curious as it was convoluted and provided unintended insight into the way Lilic ordered his reality to include a vision of his own power within the confines of Milosevic’s far greater power, regardless of what the law said. Nice came closer to cross-examining his witness when he asked, “Mladic left the RS at the end of 1996. Did he come to Serbia?” Lilic responded: “I don’t know whether he left the RS altogether but he certainly did come to Serbia.” Nice followed up by asking if there was ever an inquiry into Mladic’s involvement in Srebrenica, to which Lilic replied, “As far as I know, no such investigation was instituted.” Before the prosecutor could ask about Mladic’s subsequent promotion, Judge May cautioned him, “There’s a limit to the extent you can cross-examine your own witness.”38 Lilic admitted that during his term as president he had access to significant intelligence data, though he said that Milosevic had “more and better information.” But, when the prosecutor asked him whether he lacked intelligence on what happened at Srebrenica, despite the range of available information, he said simply, “Right.”39 Nice continued, “You denied the existence of any detention camps. . . . Did you visit the areas yourself?” In another demonstration of his convoluted universe, Lilic answered, “I did not visit them and according to my information, they did not exist. I cannot visit what our [military intelligence] service says does not exist.” It apparently never occurred to Lilic to visit the identified areas to see if military intelligence was correct. When Nice attempted to follow up by asking if the witness would agree that information of this kind could have been kept from him, Judge Robinson interrupted, “Mr. Nice, you’re getting pretty close to cross-examining.” 274  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

The lead prosecutor quietly asked his less than stellar witness, “If the Court determines that the army was involved [in the Bosnian war], who was in a position to control or influence the VJ?” The witness waffled, appearing confused. Only General Perisic could have issued orders of that kind, he said, and if he had, they could have come from Milosevic. That, he continued, would have been completely unlawful. So it could not have happened, he appeared to conclude. “Only the President of FRY [Lilic] [acting] with the Supreme Defense Council could issue such an order.” This answer exemplified the dance that Lilic did to please Milosevic and protect himself. Nice’s further probing rehabilitated significant evidence that Lilic had given on direct examination. He reasserted that the Serbian MUP was militarized under Milosevic’s presidency, and included two special antiterrorist units. He also reaffirmed that Jovica Stanisic, head of the SDB, and indirectly Milosevic, exercised political control over the Red Berets. Recalling this and Lilic’s testimony that Milosevic controlled the SDC, met regularly with Croat and Bosnian Serb leaders, including Mladic, established a state council to coordinate state policy with them, and brought some of the SDC minutes the prosecution had long sought, Carla Del Ponte described Lilic’s testimony as “a quantum leap into the realm of crucial evidence.” Experience with insider witnesses in Milosevic’s trial demonstrated that war crimes tribunals should adopt the modern rule and allow crossexamination of a party’s own witnesses.40 At least four prosecution witnesses significantly deviated from their direct testimony when Milosevic questioned them. The purpose of presenting testimony through these difficult witnesses is to assist the court in its decision making. Applying the traditional rule thwarts that aim. Trial’s Future in Question

After the summer recess the court held a status conference to discuss procedural matters concerning the defense case, due to start after a three-month recess following the prosecution’s case, optimistically estimated for the end of 2003. Milosevic announced that he required more than two years to prepare, at home in Belgrade. Given that the usual recess between prosecution and defense cases was one month, the proposal did not sit well with the judges. As Judge May pronounced with finality, “There can be no question during the trial of a break of two years.” The court just as quickly disposed of Milosevic’s request for provisional release to Belgrade. They had already ruled him ineligible for release and saw no reason to change the decision. The court was amenable to the accused’s other complaints, including that C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   275

he lacked anywhere near the resources available to the prosecution, such as investigators and a private place to interview witnesses. Judge May remarked, “He has shown in cross-examination he has a great deal of information available to him.” While Milosevic had a defense committee, he also obviously had access to government records or was in close touch with those who did. He was able to produce Ante Markovic’s appointment calendar in court when Markovic himself was unable to obtain it. As well, he repeatedly disclosed information about witnesses: twenty-year-old court cases that had been dismissed, a cousin arrested for a sex crime years before, etc. Kay argued that three months was insufficient for an imprisoned, selfrepresented defendant to do everything that is required: interviewing and preparing witnesses, developing a proposed witness list, securing exhibits and documents and preparing them for introduction into evidence, reviewing the thousands of pages of material disclosed by the prosecution, which contained potentially exculpatory material, and organizing all of this while developing a defense strategy. The argument more supported the need for representation by counsel than several years’ delay in the trial. Nice noted that the prosecution had done a considerable amount of work for the accused by providing potentially exculpatory evidence. Those documents constituted a significant part of the paper the prosecution had served on Milosevic and of which he repeatedly complained. Nice also reminded the chamber of the reality beyond the courtroom. Milosevic had been an active participant in the events covered by the indictment throughout the decade. As such, he did not have to do the extensive investigation the prosecution did. He could rely on his own knowledge, undoubtedly extensive given his control of the SDB. The prosecutor also reminded the court, “He elected to appear unrepresented despite a clear opportunity for him to have assistance.” The court should not, Nice argued, allow Milosevic’s choices to justify an extension of a suitable time limit. Judge May agreed that an accused should not be advantaged for deciding to appear pro se, but the court had to consider the reality. Nice recommended that a case manager be appointed to assist in organizing the paperwork. And while he assured the court that he was not going to raise the issue of assigned counsel again, he drew its attention to Judge Schomburg’s recent appointment of standby counsel in another case involving a self-represented and disruptive accused, Vojislav Seselj, former paramilitary leader and head of the Radical Party. The court granted Milosevic three months’ preparation time after the close of the prosecution’s case and assured that his legal needs were met. 276  C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s

Milosevic had his own office, separate from his cell, and was able to receive visitors more freely than other detainees, which proved to be his undoing. The court appointed a liaison officer to facilitate his access to documents and contacts with the prosecution. Milosevic objected to the “short” preparation time, causing the amici to appeal it. The higher chamber sustained the threemonth recess. The court informed Milosevic that he would be allowed the same time for his defense case as the prosecution was given in direct and redirect examination, and could call the same number of witnesses. Under ICTY rules the accused was required to submit a proposed witness list in advance, including a summary of testimony for each, estimated time, and an indication of whether each witness would testify in person or under Rule 92 bis. At the tribunal a party is not free to call any witness he desires. The court’s approval is required to assure that the witness has information relevant to the charges. Milosevic’s witness list contained 1,631 names. He rarely identified or summarized the subjects on which his witnesses would testify, causing the prosecution to scramble for information essential for cross-examination. If a witness had written a book or made public statements, the cross-examiner needed to review them to determine if his testimony differed on important points. If a witness denied having been an active-duty member of the JNA while serving in Bosnia, the prosecutor required the opportunity to investigate. Without advance notice of the subject matter of upcoming testimony, the prosecutor had a hard time doing his job—putting the accused’s evidence to a test so that the truth could prevail.

The trial resumed after summer break, and a little more than a week later it recessed. It was the eighth time since its beginning that Milosevic was too ill to come to court. At least fifty days had been lost to his illness and exhaustion by September 2003. Nice advised the court that the prosecution case would have been completed within a year under a regular trial schedule. Moreover, Milosevic and the amici had consumed two-thirds of the prosecution’s trial time to date. With fifty-four trial days left in its case and an abbreviated trial schedule, the prosecutor was not going to meet his deadline. The court ordered a full medical and psychological report on the accused as well as reports from the detention unit about “his condition and conduct.” While Milosevic returned to court within five days, he managed only eight trial days before he was down again as a result of a “high blood pressure crisis.” The Dutch doctor who examined him reported that he had symptoms C o n c e n t r at i o n Ca m p s a n d Sa f e A r e a s   277

of extreme exhaustion combined with a blood pressure rise to 210/120. He prescribed two weeks of rest and increased Milosevic’s medication. He also recommended that the trial schedule be reduced further, to three days of trial followed by four days of rest. The court immediately complied. From then on the trial was conducted only three half-days per week. The judges, the prosecutors, the amici, and anyone who had anything to do with the trial saw a seemingly endless process stretch out. Milosevic was not the only one suffering from exhaustion. It was long past time for the court to attack the problem by appointing standby counsel at a minimum “if the trial is to be completed before Mr. Milosevic or any one of the judges (who are also under significant ongoing stress) are unable to see it through,” as I prophetically noted at the time.41 The prosecution suggested that the accused might be incapable of defending himself. Nice pointed out Milosevic’s responsibility for his ill health. He could eliminate his exhaustion by appointing counsel to at least assist him. Kay, blaming the prosecution’s “failure to shape and hone their case from day one” for Milosevic’s exhaustion, told the court that the defendant might be too ill to stand trial at all, requiring dismissal of the charges.42 Judge May interrupted to remind the amicus that he was appointed to assist the court, not as a surrogate defense counsel. A week later the court made an about-face and authorized the amici “to receive such communications as the Accused may make to them and to act in any way to protect and further the interests of his Defence.” Was the abrupt change preparation for the eventual appointment of defense counsel? If so, it took nearly another year for the court to take the final step. Also that fall, rumors began circulating that Milosevic was manipulating his medications, playing Russian roulette with his blood pressure by flushing pills down the toilet. It was a rumor that no one could yet prove, but it persisted until Milosevic lost his gamble and the truth came out in the investigation into his death.

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The prosecutors Dermot Groome (half-hidden), Hildegard Urtz-Retlaff, Dirk Ryneveld, Carla Del Ponte (chief prosecutor), and Geoffrey Nice (team leader). Pool Photo/Getty Images.

Amici Curiae (friends of the court): Steven Kay, Michail Wladimiroff, and Branislav Tapuskovic. Michel Porro/Getty Images News/Getty Images.

Milosevic opens his defense case.

Michel Porro/Getty Images News/Getty Images.

A guard leads Milosevic into the courtroom. Jerry Lampen/AFP/Getty Images.

Trial in session. Judges Patrick Robinson, Richard May (chief judge), and O-Gon Kwon. Prosecution team with backs to the camera. Milosevic obscured next to guard in upper left corner. Television image taken 12 February 2002 (the date when the trial began). AFP (Agence France Presse) collection; photographer ICTY.

Milosevic arguing at trial. AFP/AFP/Getty Images.

Milosevic at trial. AFP/AFP/Getty Images.

Milosevic at his desk in the courtroom. AFP/AFP/Getty Images.

In Memoriam, 11 March 2006, Slobodan Milosevic.

Milos Bicanski/Getty Images News/Getty Images.

Genocide Chapter 11

Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity. Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, “Judgement,” Appeals Chamber, 19 April 2004

The charge most difficult to prove against Milosevic was genocide, a crime first named after the murder of six million European Jews in the Second World War.1 While mass murders of civilian populations have occurred throughout history, the term “genocide” was created by Rafael Lemkin as he drafted the Convention on the Prevention and Punishment of Genocide for the United Nations. The ICTY adopted the convention’s definition. The genocide charge against Milosevic read: “From on or about 1 March 1992 until 31 December 1995, Slobodan Milosevic, acting alone or in concert with other members of the joint criminal enterprise, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation and execution of the destruction, in whole or in part, of the Bosnian Muslim . . . national, ethnical, racial or religious group, as such.” Milosevic was charged with two counts, genocide and complicity in genocide.2 The indictment alleged liability on two theories: joint criminal enterprise and com-

mand responsibility. The underlying crimes included widespread killing of the civilian population (in particular, targeting community leaders and the educated élite) during takeovers of territory, and the killing, torture, rape, beatings, and starvation of thousands in detention facilities, as well as the mass exterminations at Srebrenica in 1995. While genocide discussions generally focus on Srebrenica, Milosevic was indicted for genocide against the Bosnian Muslims over a longer time span and across a broader geographic area. Initially the prosecution identified eighteen locations, later reduced to seven because of judicially imposed time limits, as part of the genocidal campaign: Brcko, Prijedor, Sanski Most, Bosanski Novi, Bijeljina, Kljuc, and Srebrenica.3 Only in the Karadzic, Mladic, and Milosevic indictments had the OTP alleged that the entire four-year campaign against the Bosnian Muslims constituted genocide. The prosecution brought separate cases against others for genocide during the sweep across Eastern Bosnia in 1992, in the Bosnian Krajina, in the camps, and for the Srebrenica massacre of 1995. This piecemeal approach, in part necessitated by the ICTY’s jurisdiction to try individuals but not states or ethnic groups, precluded the tribunal from considering the actions of participants in one comprehensive joint criminal enterprise from March 1992 through December 1995. It may have affected the tribunal’s narrow view of genocide and possibly led to the lack of convictions, though the similarity between genocide and persecution, a crime against humanity, likely contributed as well, as will be discussed shortly. As Judge Awn Shawkat Al-Khasawneh, vice-president of the International Court of Justice, wrote in his dissent to the judgment in Bosnia’s case against Serbia and Montenegro: “[G]enocide is definitionally a complex crime in the sense that unlike homicide it takes time to achieve, requires repetitiveness, and is committed by many persons and organs acting in concert. As such, it cannot be appreciated in a disconnected manner.”4 At the ICTY the Milosevic, Karadzic, and Mladic indictments were the only ones to present the big picture within which the accused in other cases acted. After ten years and as many people indicted for genocide, the tribunal in 2005 had yet to convict anyone for committing it, though the tribunal had recognized that the massacre of seven to ten thousand Bosnian Muslim men and boys at Srebrenica in July 1995 constituted genocide.5 It appeared to be a crime without a perpetrator. Nor had the tribunal found that genocide occurred anywhere other than in Srebrenica.6 The ICTY set a high standard for proving genocidal intent, resulting in a narrow conception of guilt and no convictions. This approach was evident G e n o c i d e   285

in the appeals chamber’s reversal of General Radislav Krstic’s conviction for genocide at Srebrenica. Though Krstic commanded the operation, the higher court concluded that he was “only” following orders and lacked the genocidal intent of his unnamed superiors on the VRS main staff. The court wrote: “Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established ” (emphasis added). The appeals chamber found aiding and abetting genocide to more appropriately describe the general’s guilt, because he was “a man unwillingly caught up in the evil around him” and lacked the specific intent to destroy a part of the Bosnian Muslims. Aiding and abetting does not require intent to destroy part of a protected group. The mental element is knowledge of the genocidal intent of those assisted. Still, the Geneva Conventions required Krstic to disobey the order to coordinate the mass killing of civilians and prisoners of war. Though unhappy with the order, he did not resist it. The very gravity of the crime may have restrained the court from holding Krstic responsible, despite his knowing that his actions were making genocide possible.7 More than intending to commit murder, even on a mass scale, the perpetrator of genocide must have a specific intent to destroy a substantial part of a protected group. Perpetrators rarely leave written evidence expressing their intent to commit genocide. As a result, the law provides that intent can be inferred from circumstantial evidence (hate speech, destruction of a part of the group important for survival, such as its leaders and intellectuals, killing or the systematic perpetration of other crimes against a large number of a group protected by the Genocide Convention, etc.), as long as it is the only inference that can be made. Excluding all other possible reasons is a nearly impossible task, particularly because the ICTY statute provides that murder directed against a civilian population and committed with intent to persecute on political, racial, or religious grounds constitutes a crime against humanity if it is widespread and systematic. Without a clear declaration of genocidal intent, circumstantial evidence tending to prove genocide will support a finding of persecution as well, thus precluding a finding of genocide. While all but one decision of the ICTY appeals chamber narrowly interpreted the law of genocide, the trial chamber in Milosevic articulated a more inclusive standard of responsibility. The trial never reached a verdict, but the judges’ thinking about the law of genocide is reflected in their mid-trial decision on the amici’s Motion to Acquit following the close of the prosecution’s case.8 The trial chamber concluded that the prosecutor had pro286  G e n o c i d e

duced sufficient evidence to support the charges of genocide and complicity in genocide. In reaching its decision the chamber viewed genocide through a wide lens, following an appeals panel’s interim decision three months before. Diverging from the majority of jurisprudence, the appellate panel in the Brdjanin case held that a person can be guilty of genocide, though he did not intend it, in three ways: (1) if he participated in a joint criminal enterprise where genocide by others was reasonably foreseeable, (2) for aiding and abetting or being complicit in genocide, and (3) for failing to exercise command responsibility over subordinates who commit genocide.9 Other ICTY decisions (such as Krstic) held that these acts constituted something less than genocide, at most aiding and abetting. Based on this conception of the law, the trial chamber in Milosevic ruled that the accused could be found guilty of genocide committed under joint criminal enterprise liability, even if he lacked genocidal intent. He need only have participated in a criminal enterprise to commit another crime (such as forcible expulsion) and have reasonably foreseen that other members of the enterprise would commit genocide—and they did. The court went further, again citing Brdjanin as precedent, holding Milosevic could be guilty of genocide for genocide committed by his subordinates. Under command responsibility theory, a superior (civilian or military) is obliged to prevent or punish his subordinates for their crimes. The Milosevic court said that a superior is responsible for genocide by his subordinates, even though he does not share their intent to commit genocide. This was startling to many legal analysts, who had taken the position that genocide due to one’s superior position alone was impossible because the superior lacks the requisite genocidal intent. Not so, said the Milosevic court. Superiors must use their authority to prevent genocide (where they know it is likely) and to punish it after the fact, or they too will be held liable for genocide.10 This conception of the law is at odds with the principle that a superior who fails to prevent or punish his subordinate for a crime is guilty of failure to carry out his responsibilities, not guilty of the crime committed by the subordinate. The Milosevic court’s novel approach would essentially impute the crime of genocide to the superior, viewing his failure to act as evidence of his agreement with his subordinate’s intent to commit genocide. The trial chamber in Milosevic and the Appeals Panel in Brdjanin extended liability to those without whom genocide would not have been possible even if they did not share the genocidal intent—as long as they knew that their action or inaction was necessary to carry it out. As these judges saw it, those who knowingly support and advance genocide should answer for it. G e n o c i d e   287

One whose pursuit of power sets in motion the real possibility of genocide, who nevertheless takes the risk by continuing to provide the means to those who are intent on accomplishing it, who quite possibly could prevent it yet sits back and lets it happen, will be considered as guilty as those who intentionally set out to destroy the Bosnian Muslims in substantial part. Under this view such a person should be branded with the crime of genocide, not a crime of apparently lesser import. Moreover, it is important to distinguish between intent and motive. A perpetrator of genocide need not harbor animosity for the group he sets out to destroy. He could pursue their partial destruction quite cold-bloodedly, solely because it serves his lust for power or achieves his goal of an ethnically cleansed state. The trial chamber’s interpretation of genocide law left the door open for a broader look at what the Bosnian Serb leadership, aided by Milosevic, was up to with its four-year campaign to drive non-Serbs out of Bosnia. That broader focus can only happen in a leadership trial encompassing more than separate incidents (or in a trial against a state such as Bosnia’s against Serbia and Montenegro before the ICJ).11 The two Bosnian Serb political leaders convicted to date, Momcilo Krajisnik and Biljana Plavsic, were not convicted of genocide or assisting it, though they participated in decision making at the highest level of Bosnian Serb leadership. Krajisnik was second to Karadzic, with whom he regularly conferred. He was convicted of persecution, murder, extermination, deportation, and forced transfer occurring throughout thirty-five municipalities in Bosnia from 1 July 1991 to 31 December 1992. The trial court found that these acts could constitute genocide, but the intent to destroy a substantial part of Bosnian Muslims and Bosnian Croats was missing.12 Plavsic, a member of the tripartite RS presidency, pleaded guilty to one count of persecution, while the trial chamber acquitted Krajisnik of genocide or complicity in genocide. Neither Serb leader was charged with genocidal acts other than those committed in the takeover in 1991–92 of 70 percent of Bosnia, though they continued in their positions throughout the war. That leaves Mladic and Karadzic as the only remaining accused to face charges for a wider genocide.13 While Mladic remained at large as of this writing, Karadzic was arrested in August 2008 and will stand trial at the ICTY, giving the tribunal one more chance to determine whether the genocide in Bosnia was confined to Srebrenica or encompassed a broader campaign. If the tribunal takes a more comprehensive view, it may find that genocide was a natural and foreseeable consequence of the joint criminal enterprise, beginning in 1992 with the destruction and ethnic cleansing of Eastern

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Bosnia and the Bosnian Krajina; the assault on these areas involved detention under conditions calculated to bring about partial destruction of the Bosnian Muslims (and Croats) and the siege of safe areas, and culminated in the Srebrenica massacre. Mladic himself foresaw that genocide would result from a policy to ethnically cleanse areas of Bosnia. In a remarkable statement on 12 May 1992, he addressed the Bosnian Serb Assembly: “People and peoples are not pawns nor are they keys in one’s pocket to be shifted from there to there. . . . Therefore, we cannot cleanse nor can we have a sieve to sift so that only Serbs would stay, or that the Serbs would fall through and the rest leave. . . . I do not know how Mr. Krajisnik and Mr. Karadzic would explain this to the world. People, that would be genocide.”14 Taking a broader view might have increased genocide convictions if the tribunal had adopted a more expansive interpretation of the law on genocide, as the Appeals Panel in Brdjanin and the trial chamber in Milosevic did. As it is, if no one or only a few defendants are convicted of genocide, the historical record is distorted, causing a grave injustice to the victims of a genocide that destroyed their community, tens of thousands of its members including much of its intellectual and political leadership, and their way of life. The tribunal’s reluctance to brand perpetrators with the crime of crimes shows a misplaced concern that relegates victims to a minor role. A more liberal approach to the law of genocide might have affected the decision of the International Court of Justice in Bosnia’s case against Serbia, as that court looked to the ICTY for legal rulings as well as evidence. Despite finding that the Bosnian Serbs, with Serbia’s aid, had committed genocide in Srebrenica, the justices concluded that the evidence did not support their doing so in other municipalities. According to David Luban, professor of law and philosophy at Georgetown University Law Center, “Judge Awn Shawkat Al-Khasawneh of Jordan dissented and got it right. He criticized the ICJ for treating the evidence in a piecemeal, disconnected, myopic way, so that overwhelming evidence of Serbian support for ethnic cleansing accomplished through ethnic killings didn’t constitute specific intent to commit genocide or even complicity in genocide. This is like an American court exonerating a financial backer of the Ku Klux Klan from a charge of complicity in a hate crime, even though he bought the guns, ropes, gasoline, and bed sheets. Doesn’t it seem pretty clear that those purchases are evidence of complicity in a hate crime the Klan then commits?”15 Another commentator concluded, “Genocide is widely acknowledged to be the supreme international crime, but for this very reason courts seem reluctant to recognize it, despite over-

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whelming evidence. It is not too strong to say that in this case, the International Court of Justice has engaged in systematic denial of the Bosnian genocide.”16 Judge Al-Khasawneh concluded in his ICJ dissent that Milosevic as well as the FRY bore responsibility for genocide. “There can be no doubt that President Milosevic was fully appraised of General Mladic’s (and the Bosnian Serb army’s) activities in Srebrenica throughout the takeover and massacres.”17 “I am certain that as far as Srebrenica is concerned, FRY responsibility as a principal or as an accomplice is satisfied on the facts and in law. I am of the opinion also that with regard to other parts of Bosnia and Herzegovina, had the court followed more appropriate methods for assessing the facts, there would have been, in all probability, positive findings as to Serbia’s international responsibility.”18 Behind the differing legal analyses lay the fundamental moral question of who should be held responsible for the gravest of all crimes and to what degree. In attempting to preserve the uniquely serious nature of the crime, the appeals chamber in Krstic interpreted the law so narrowly that it could only snare a few top leaders in its net. The trial chamber in Milosevic, on the other hand, cast its net broadly, to catch a larger number of those necessary for the top leaders to carry out their plan. It was on the right track. When a person knowingly lends his assistance to a genocidal campaign which could not be accomplished without him, he should be as guilty before the law as the fanatical racist who wants to exterminate a people or the cabal that sets the campaign in motion to achieve its ends. Only the broader conception of responsibility can deter those who find it easier to go along than refuse to lend themselves to a genocide machine. Only this broader conception can do justice to the victims who deserve judicial fairness to help restore a world torn asunder. Only in this way can the law as representative of the community stand firmly beside those who have been so grievously harmed. Had the Milosevic trial reached judgment, however, and the trial chamber decided that the accused was guilty of genocide or complicity in genocide though lacking proof of direct genocidal intent, the appellate decisions make it almost certain that an appeals panel would have overturned the decision and, at most, found Milosevic guilty of aiding and abetting genocide.19 With a verdict precluded by Milosevic’s death, the ICTY has so far failed to establish whether the Bosnian Serbs pursued a genocidal campaign from the beginning of the war or rather one limited to Srebrenica. It will have another opportunity when Karadzic comes to trial. Lacking a judicial determination of a wider genocide, the tribunal record will leave Srebrenica as an 290  G e n o c i d e

anomaly, separate from the four-year campaign to rid 70 percent of Bosnia of its Muslim and Croat populations. Unless the tribunal finally determines whether the Bosnian Muslim genocide was more comprehensive in time and geography, the victims and the public will lack resolution. It will not serve history or the future well.

Dr. Anthony Zwaan, an expert in the relatively new field of genocide studies at the Centre for Holocaust Studies in Amsterdam, testified about the nature of genocide from the social science point of view. The prosecution offered his testimony to assist the court in a broader understanding of genocide. According to Zwaan, the Holocaust was different from other genocides and mass killings in that the Nazis attempted to annihilate every Jew within reach. Other massacres that social scientists consider genocide have not aimed at such completeness, he said. Genocide does not occur naturally within societies. It originates with those who hold power or seek to grasp it, Zwaan explained. Two fundamental preconditions for its development are a society in crisis and a society divided. Under such conditions the originators make a plan to eliminate a group, followed by propagation of an ideology that dehumanizes the group, dividing the populace more firmly into “us and them” and providing the impetus needed to overcome people’s resistance to large-scale killing. In Bosnia, Serbs were propagandized to fear what was falsely characterized as a rising tide of Muslim fundamentalism. In reality Bosnian Muslims had become almost wholly secular in communist Yugoslavia, joking that they preferred to answer the call to prayer five times a day by raising a glass of rakija (a local fruit brandy) than by kneeling and bowing toward Mecca. Though it makes sense within our worldview that known criminals might commit mass murder, we are disturbed and disbelieving when otherwise law-abiding people join in. As Zwaan explained, the state-approved norm changes to embrace what was formerly considered criminal. Our shadows are given permission to take center stage. While creating the plan and giving it impetus, leaders are careful to keep a distance from the results to avoid leaving traces, according to Zwaan. Hitler never witnessed a genocidal act. Nor did he write an order to “kill all the Jews.” Yet it is known from Heinrich Himmler that he must have given that order orally. It is the same, Zwaan said, in other cases. Only circumstantial evidence remains to tie the plan’s originators with its horrifying results. Milosevic addressed his audience at home rather than challenge Zwaan’s G e n o c i d e   291

testimony. After questioning his qualifications, the accused assailed Zwaan, a Dutch national, with questions about state crimes in Dutch history and the genocide of Serbs by the Croatian Ustasha during the Second World War. In addition to Dutch participation in the slave trade and its exploitation of the East and West Indies, Milosevic accused the Netherlands of responsibility for apartheid in South Africa. Zwaan retorted that the Netherlands had nothing to do with apartheid. It was established by descendants of Dutch settlers. As for Milosevic’s assertions about genocide committed by the Croatian Ustasha against Serbs, Zwaan agreed that there had been genocidal acts against the Serbs in the Second World War. Steven Kay, in a precisely crafted cross-examination, obtained Zwaan’s agreement that those who intentionally initiate fragmentation and disintegration of a state may lose control of a dynamic that carries all parties to “an uncertain outcome and future.” With Bosnia in mind, one might conclude that the ethnic cleansing got out of hand, resulting in mass killing—but without the leadership’s intent to destroy the Bosnian Muslims, he suggested. On reexamination, however, Zwaan reiterated that unforeseen events resulting from disintegration of a state do not include genocide which is not a naturally occurring phenomenon. Zwaan’s testimony placed the allegations of genocide against the Bosnian Muslims in a broader context and aided understanding of the forces creating it. In the end, however, only the legal definition of genocide mattered. Two Kinds of Victims

B-1401 was a seventeen-year-old refugee when he and his family were caught in the maelstrom of war, ethnic cleansing, and mass executions that became known to the world as “Srebrenica.” When the Bosnian Serbs attacked the UN safe area on 6 July 1995, B-1401, along with other able-bodied Muslim men and boys, was faced with the decision to seek shelter at the UNPROFOR base in Potocari among the women and young children or flee into the woods. Understandably lacking confidence that UNPROFOR would protect them, B-1401, his father, his uncle, and other male relatives headed for the woods. They joined a column of fifteen thousand men led by one to three thousand Bosnian army troops, heading toward Bosnian-controlled territory. In fierce fighting the Bosnian soldiers broke through enemy lines, leaving civilians and some of the soldiers behind. When Milosevic questioned the witness about the army’s abandonment of civilians, he responded, “They had to save themselves. If they’d taken us, no one would have survived.” The remaining civilians spent the night in the woods under heavy shellfire. B-1401 described 292  G e n o c i d e

The Fall of Srebrenica Attacked on 6 July 1995, the safe area of Srebrenica quickly fell to the Bosnian Serb army. Thirty thousand refugees stormed the un base at Potocari, which had no means to accommodate such a large mass of frightened and desperate people. A segment of the Bosnian Army 28th Division and a large number of unarmed men who felt they were in danger if taken prisoner attempted to break through the vrs encirclement to reach Bosnian government territory. Only the column’s front segment got through, while thousands of mostly civilian men and boys were captured by Serb forces. At the same time, Serb forces rounded up the remaining people in the safe area, separating out men between the ages of sixteen and seventy. When discussing Srebrenica it is important to remember that there were several distinct, though overlapping, events: the vrs attack on the safe area of Srebrenica (beginning 6 July) and its fall (11 July); the formation of a column of Bosnian Muslim men, headed by the ab ih 28th Division, trying to break through the vrs lines (11–12 July); the forced evacuation of women, children, and some elderly men (12–13 July); and the detention, transfer, and execution of the remaining men and boys (12–15 July).

a scene of extraordinary chaos. Men were wounded and dying. Some were hallucinating and a few killed themselves rather than surrender. They did not know where they were. The witness lost contact with his father and never saw him again. Next day the shelling let up and Serb forces demanded that the column surrender. While some men headed deeper into the woods, many thousands walked toward Serbian forces with their hands raised. B-1401 described walking over corpses, seeing men with their faces and hands blown off from shells. He estimated that about five hundred men were killed in the woods. After demanding that the men throw down their weapons, valuables, and German marks, their Serb captors crowded them onto trucks, where they spent the night without food or water. The following morning the men were crammed into a school building in Petkovci under even worse conditions and forced to repeat, “This is Serb land. It always was and always will be.” The men were so thirsty they drank their own urine. As night fell they were taken out in groups of three to five, followed by the sound of gunfire. None returned. Soldiers later led the remaining men out, tying their hands and loading them onto a truck. The witness described feeling a sticky substance on his foot and seeing a large pile of corpses in front of the school. After a five- to ten-minute ride the truck stopped. Men were unloaded in groups of five. Each time the men remaining heard shots. B-1401 G e n o c i d e   293

said they tried to avoid getting off the truck, knowing that they were going to be executed. Many begged for water. They did not want to die thirsty. The witness said he tried to hide too. “I just wanted to live another minute or two.” When it was his turn, Serb soldiers ordered his group to find a place to lie down among the dead bodies. “Everything happened so fast,” he told the court. “I thought I’d die soon and not suffer any more, that my mama would never know where I am.” The soldiers opened fire. B-1401 was shot in his right side. When the next group came and the shooting resumed, he was wounded again—in his left foot. Later he was hit once more. He was suffering so much from his wounds, he testified, that he wanted to cry out and beg to be killed. The moaning of the man next to him elicited a bullet in the head. The killing continued for another hour. His pain was so excruciating that B-1401 would never have tried to escape had it not been for another survivor. The two untied each other’s hands with their teeth, crawled on their stomachs across the field of corpses, and reached the top of a hill. Next morning they saw a yellow loader collecting a “very large pile” of dead bodies. Speaking of the trek through the woods with the other survivor, B-1401 testified, “He was the only one who knows how badly I suffered. I couldn’t walk. He would leave me, then come back and beseech me to go on. I hurt so badly.” After four days of traveling they reached safety. Milosevic questioned the witness about the nature of the column of men— how many were armed, how many were soldiers, how many in the woods were killed in combat. The accused was seeking support for his defense that a large number of the Srebrenica dead had died while fighting. Yet if 500 men died fighting in the woods, at least 6,500 more remained to be accounted for. When Milosevic questioned the young man about apparent discrepancies in identifying the execution site, B-1401 responded, “It happened during the night. You’ll never be able to understand the feeling when one is taken out to be executed.” As one of the prosecutors later wrote, “When this boy testified something happened in the courtroom. We were all—judges, prosecutors, amici choking back emotion. It was [as] if his having passed through that experience imparted a quality to him that impacted us all.”20

Drazen Erdemovic appeared in court to testify about his participation in the murder of twelve hundred Bosnian civilians near Srebrenica. He admitted killing a hundred of them himself. When asked by the amicus, Branislav 294  G e n o c i d e

Tapuskovic, how he carried out the executions, he replied that the events were too horrible to talk about again. Erdemovic, who earlier suffered an emotional breakdown, pleaded guilty to war crimes in 1996 and agreed to testify for the prosecution in its Srebrenica cases. Erdemovic was twenty-three years old when he and other members of the Bosnian Serb army’s 10th Sabotage Detachment were ordered to Bratunac on 10 July 2005 to take part in the assault on Srebrenica. Five to seven hundred Serbian soldiers captured the town in a few hours, finding only about two hundred civilians, mostly elderly, still there. During the assault the majority had fled to the nearby UN base at Potocari, seeking protection or attempting to join the column of men trying to escape through the woods. For Erdemovic and his victims the real horror began on 15 July, when a lieutenant colonel ordered him and seven other members of the 10th Sabotage Detachment to go to Branjevo Farm. There superior officers explained buses would arrive carrying Bosnian civilians, whom they were to execute. When Erdemovic and two other soldiers objected, the officers said they could join the captives and share their fate. For the next four hours the men of the 10th Sabotage Detachment systematically executed approximately twelve hundred Bosnian Muslim men and boys between the ages of sixteen and seventy in groups of ten, some blindfolded with their hands tied behind their backs. When it was over, the lieutenant colonel ordered the soldiers to Pilica, where the detachment was to execute five hundred more men. Erdemovic and several others refused, and the job was given to the Bratunac Brigade. Erdemovic testified that his orders came from the VRS main staff: “In order to organize anything like that the authorities had to know about it. My unit could not have provided all the buses and things. It is clear that someone very high up was behind it.” Milosevic tried to characterize Erdemovic as a lying opportunist, who agreed to accuse people of the massacre in exchange for a light sentence. The accused also set out to establish that the VRS main staff or other “higher-ups” had not ordered or approved the killings. He offered General Zdravko Tolimir’s order of 9 July 1995 to honor the Geneva conventions in taking Srebrenica, and Karadzic’s order of 11 July 1995 that civilians were to be protected and to be asked whether they wished to stay or leave Srebrenica. Erdemovic never heard of them. Erdemovic “was a mere foot soldier” and “a reluctant participant,” according to the trial chamber that sentenced him to five years in prison. He attempted to protest the slaughter and was told he would be killed if he refused to follow orders. The sentencing court also noted his exceptional cooperation G e n o c i d e   295

with the prosecution, his admission of guilt, and his continually expressed remorse. These factors mitigated his sentence, while the horrible nature of the crimes he committed was an aggravating factor. The court concluded: “No matter how reluctant his initial decision to participate was, he continued to kill for most of that day.”21 The issue before the trial chamber in Milosevic was the guilt of a man alleged to be responsible for exploiting Erdemovic and other foot soldiers to do his dirty work. Though Erdemovic was guilty of murder as a war crime, he was found not guilty of genocide. Unlike those who planned and coordinated the Srebrenica massacre, he lacked the specific intent to destroy Bosnian Muslim men and boys as a group. His intent was to kill to avoid being killed himself, which did not excuse his executing a hundred people. In the final analysis, however, it was unlikely that Erdemovic, and many more of the foot soldiers, would have become killers without their superiors’ having devised the plan. Under the law those superiors were answerable for killing done under their orders, but not for the harm they did to the young men whom they turned into killers. Karadzic’s Orders

As the date for ending its case drew near, with much time consumed by interruptions for Milosevic’s illnesses, the prosecution rushed through some of its most important witnesses relevant to the genocide charges, relying on submissions of written material unavailable to the public, as well as transcripts from other trials.22 When B-1804, a senior Bosnian Serb officer who had served in the JNA, took the stand, some of his direct testimony consisted of a recital of topics contained in his written statements without elaboration; other testimony was taken in private session. Like many Serb witnesses for the prosecution, B-1804 seemed at least partly more helpful to the accused. But on reexamination Nice read an order from Karadzic to the commander of the First Krajina Corps, dated 21 March 1995 and titled “Directive for Upcoming Operations.” Known as “Directive Seven,” it spelled out the Bosnian Serb strategy in horrifying language: “By a planned and well-thought-out combat operation, create an unbearable situation of total insecurity of life with no hope of further survival for the inhabitants of Srebrenica and Zepa.” If the Bosniaks chose to remain in the safe areas they would perish. The order also included a directive to destroy the Muslim forces if the UN withdrew and to “liberate” the entire Drina Valley region. B-1804 explained that this was a broad document, “issuing more extensive assignments for longer periods of time.” None of the ICTY trial chambers or 296  G e n o c i d e

appeals panels that have considered the issue has found this evidenced intent to commit genocide, since another interpretation is possible: the orders reflect a strategy of forced removal and the hoped-for results of a battle with opposing forces. Milosevic secured B-1804’s agreement that his unit had not committed any crimes, he did not know of any liquidation plan, and any order to abide by international conventions was unlikely to have prevented revenge attacks when the Serbs took Srebrenica. B-1804 also said he did not know if anyone from the Serbian Interior Ministry was operating in Bosnia. The argument that revenge motivated the genocide in Srebrenica was undercut by Erdemovic’s testimony, showing a systematic operation in which some of the soldiers were forced and others ordered to participate. Tapuskovic elicited B-1804’s estimate that between five and fifteen hundred Bosnian government soldiers were killed in fierce fighting with the VRS in the area of Srebrenica. Even if correct, at least six thousand more Bosniaks remained unaccounted for. Nor did the fallen soldier theory explain the many ligatures and blindfolds found in mass graves. B-1804 was reluctant to name the crimes committed by his compatriots at Srebrenica. Invoking a euphemism used by the amicus, Nice asked how certain people at Srebrenica were “deprived of their lives?” Was it in combat or by other methods? B-1804 replied that they were killed in different ways. When the prosecutor persisted, he conceded that those not killed in combat were killed in “illegal ways.” The closest he came to a more specific description of events was a reference to mass killings and the names of two execution sites, Orahovac and Petkovci. Finally, responding to the prosecution’s question about the statement in a commander’s combat report on 15 July that a number of additional people would have to be let go, the witness replied, “They were not let go to freedom.23 They were executed later.”

In 2003 the prosecution stepped up its attempts to secure guilty pleas from accused awaiting trial. To judges from civil law traditions, plea agreements were as curious and unwelcome as a plague of frogs at the dinner table. Some felt that plea agreements were part of a prosecution strategy to clear its docket and quickly dispose of cases before the tribunal end date of 2010 set by the UN. Whatever influence the end date may have had on the prosecution’s thinking, plea agreements served a significant function—they helped to establish truth. Miroslav Deronjic, a close ally of Karadzic, pleaded guilty to one count G e n o c i d e   297

of crimes against humanity for his role in the ethnic cleansing of Bratunac in 1993, leaving the village decimated and sixty-five civilians dead. Deronjic was also involved in the crimes at Srebrenica in 1995 but not charged for his role, a decision disturbing to many genocide survivors. Nevertheless, the evidence that this insider provided was significant. Deronjic, who was in frequent contact with Karadzic before, during, and after the genocide, was the first witness in any trial to directly link Radovan Karadzic with the crimes committed in Srebrenica. In June 1995, after a meeting of the SDS main board, Deronjic learned of plans for Srebrenica. Karadzic took him aside: “Miroslav, in Srebrenica there is going to be a military operation soon. I can’t give you any details and please do not mention this to anyone. However, take steps, or measures that you think appropriate in Bratunac upon your return.” Deronjic began preparing to feed and house a large military force in his area. Deronjic was again in Pale on 9 July to talk with Karadzic about the Srebrenica operation, by now in full swing. When he arrived he found Karadzic with Momcilo Krajisnik and Jovica Stanisic, head of Serbia’s SDB. Karadzic introduced Deronjic as “one of our guys from down there,” indicating that the others had been talking about Srebrenica. The presence of Milosevic’s security chief was strong evidence that Milosevic was, at a minimum, closely following events.24 Deronjic said he could tell from touring the area that the planned military operation at Srebrenica was not routine. He wanted to know its specific goal. “And [Karadzic] said all right, Deronjic, I will tell you openly what it is about.” Karadzic described two options: a reduction in the size of the protected zone and a military takeover. The second option was conditional on how the military operation developed on the ground. Then Karadzic dropped a bombshell. Karadzic asked Deronjic how many residents were in the Srebrenica area. When he replied about forty thousand, Karadzic wanted to know what the Bratunac municipal authorities planned to do with them. Deronjic responded, “Mr. President, there is no way I could even suppose how the events would unfold following the entry into Srebrenica. . . . And then he said the following sentence to me: ‘Miroslav, all of them need to be killed.’ And then he added: ‘everything you can get your hands on. . . . along the lines of Western Slavonia’” (emphasis added). The reference, Deronjic explained, was to a belief that the “Croats killed everyone they could get their hands on [soldiers or civilians]” when they attacked Serbs in Western Slavonia after Operation Flash in May 1995.25 298  G e n o c i d e

On 11 July Deronjic learned that the order had been given for Bosnian Serb forces to enter Srebrenica. Shortly after, he received an urgent order to call Karadzic, who wanted confirmation that RS forces had entered Srebrenica and that there were many civilians in Potocari. When told that his main task was to deal with the civilians in Srebrenica, Deronjic asked for instructions. Karadzic directed him to get in touch with Mladic, the Muslims, and UNPROFOR and to give the Muslim civilians three options: stay in Srebrenica, go to territory held by Bosnian Muslims, or go to a third country. The only real option, Deronjic said, was the second. What had happened to his intention to kill them all? Deronjic’s testimony is ambiguous, but it appears that the intention was to evacuate women and children to avoid an international outcry, while targeting men and older boys for annihilation under the cover of combat. Karadzic asked if Deronjic knew whether any of the civilians were men, then warned that war criminals might try to hide among them. Deronjic continued, quoting Karadzic, “‘And insist on that, Miroslav, that those people must be kept behind, or held.’ And he even said that we should insist . . . because it is something that we had a right to do under customs . . . of war.” In the event, Deronjic did not have to insist, as UN forces (specifically the Dutch Battalion, or Dutch Bat) willingly assisted with the separation of men and boys. Next morning, Deronjic attended a meeting that Mladic organized with Dutch Bat and Bosnian representatives. In a short segment of a video made by the Bosnian Serbs and shown in court, Mladic is recorded telling the Muslims that their choice is to turn over their weapons or disappear. The Muslims who remained in Potocari were unarmed civilians, including men and boys who felt unable to strike out through the woods or were unwilling to leave their families. They had no weapons to turn over. When Deronjic realized that Mladic had no intention of allowing him to explain Karadzic’s three options to the refugees, he did so anyway. He also said that those suspected of committing crimes were to be held behind. “I was intending to say a few more sentences, however, Mladic interrupted me. He cut me off quite arrogantly and strongly.” Deronjic called Karadzic to report on the meeting. “I told him that the Muslim representatives quite explicitly stated that they wanted to leave Srebrenica.” They discussed the number of people in Potocari (about twenty thousand) and how to arrange transportation out of the enclave. As buses arrived and convoys started leaving, Colonel Dragomir Vasic, head of Zvornik Security Center, told Deronjic that men were being separated from the G e n o c i d e   299

women. Deronjic asked whether the separation was selective or general, advising him that if it was a general separation he should tell Mladic “it was completely senseless to be doing this in front of UNPROFOR.” A selective separation could have supported the subterfuge of checking for known war criminals. A general separation supported a more literal interpretation of Karadzic’s directive to “kill them all.” By this time the decision to do just that to the men and boys—to commit genocide—had been made. Karadzic continued closely following events on the ground through Deronjic and others. He called on the morning of 13 July to learn how the evacuation of civilians (by which he meant women, children, and a few elderly men) was proceeding. Deronjic reported that more than half had been transported and that the operation would be completed during the course of the day. When asked about combat forces, Deronjic advised that they were engaged in combat with perhaps ten to fifteen thousand Bosnian troops. He said that they “were already capturing or arresting people and that there had been some liquidations of Muslims.” That afternoon or evening, the MUP commander Ljubomir Borovcanin told Deronjic that there had been a massacre of Muslims at the Kravica warehouse.26 He explained that a Bosnian prisoner had grabbed a rifle, killing one policeman and wounding several more. In revenge the policemen threw grenades into a warehouse where prisoners were held. Over three hundred people were killed, Deronjic dutifully reported to Karadzic.27 By this time Bosnian men captured from the column were being bused and trucked to Bratunac. There were so many that available buildings such as schools, hangars, and a stadium were soon filled beyond capacity, and some prisoners had to remain in the vehicles overnight. Deronjic was concerned about security with so many prisoners in his town. When he “realised that they were going to kill them in Bratunac,” Deronjic headed for the military telephone to call Karadzic.28 Deronjic was unable to recall his exact words to Karadzic, because the two spoke partly through intermediaries and partly in code. The substance of what he tried to convey, however, was “that if anybody intended to kill all those people in Bratunac that that was completely mad because there were a lot of journalists there, international forces and various other [humanitarian] services doing their work.” Karadzic said he would send someone with instructions. And in a coded sentence he added, “Miroslav, before the dawn, the goods have to be in the warehouse.” For emphasis he asked, “Did you understand?” Derjonic replied that he did. Within a few hours Colonel Ljubisa Beara, the VRS main staff chief of security, entered Deronjic’s office 300  G e n o c i d e

unannounced.29 Beara said he was there because of the prisoners: all of them needed to be killed. Deronjic told his visitor that Karadzic had ordered the prisoners to be taken toward Bijeljina, to the prisons at Batkovic and Zvornik. He insisted that none were to be killed in Bratunac. Beara was unhappy. His orders, which he said came from the “top” (possibly Mladic or the VRS Main Staff ), were to carry out executions in Bratunac. Eventually Beara “unwillingly consented” to transport the prisoners from Bratunac. On the following day (14 July) Deronjic again traveled to Pale, where he gave Karadzic a full report. Deronjic identified some units involved in the Srebrenica operations: members of the Bratunac Brigade, the protection regiment, the sabotage detachment, some police units, military police units from other municipalities. When the prosecutor asked if he had any information that police forces from Serbia were present, he stated that he saw a person he knew from the Red Berets with a few of his men in Srebrenica somewhere between 12 and 14 July. The Red Beret was on his way to find Mladic in Potocari. Though not without contradictions, Deronjic’s evidence was significant. He was a high-level insider, constantly in touch with the RS president, who gave a detailed account of genocide in the making—its implementation and its cover-up. He did not present a complete picture. He was not privy to discussions at the army’s main staff level, nor was he a confidant of Mladic. But his conversations with Karadzic reveal that at least by 9 July the president intended to exterminate Muslim men and boys in Srebrenica. It was only necessary for events to unfold in a manner allowing the extermination to be carried to its anticipated conclusion. According to Deronjic’s evidence, Karadzic actively participated in that unfolding all the way through the killings and the cover-up. Milosevic homed in on Karadzic’s statement to the witness on 8 or 9 July that all the Bosnian Muslims in Srebrenica needed to be killed. To have said such a thing is “madness,” Milosevic protested. He proffered written orders by General Milenko Zivanovic, commander of the Drina Corps (2 July), and General Zdravko Tolimir, Mladic’s assistant for intelligence and security (9 July), directing soldiers to treat civilians and prisoners of war according to the Geneva Conventions.30 Deronjic said he had seen neither order during the Srebrenica operation. He agreed that the orders contradicted the oral order to “kill them all.” But written orders, Deronjic testified, were smokescreens and were rarely given to anyone. The witness who followed Deronjic to the stand, C-57, a former JNA officer, corroborated his testimony (as had other witnesses who served in the military), stating that orders given orally G e n o c i d e   301

were often inappropriate to put in writing and that the practice was not to do so. The accused tried several angles to discredit Deronjic’s evidence. “Did not the Western Slavonia principle Karadzic referred to mean mass expulsion, not killing?” Deronjic said it was commonly understood that the principle referred to Croats killing Serb soldiers and civilians alike fleeing Operation Flash. “Why then,” Milosevic persisted, “did Karadzic later give you three options to pass on to the civilians at Potocari, none of which included extermination?” Deronjic reiterated that Karadzic did not just say “kill them all” but qualified the instruction by referring to the Western Slavonia principle, according to which Croats combined killing with other methods to drive out the Serbs and by adding, “everything you can.” He agreed that Karadzic’s order to have all the “goods” in the warehouse by next day was an order to evacuate these prisoners, not kill them. Because the instruction was given over a line that was not secure, the anonymous intermediary reported that Karadzic said he would send someone with instructions for Deronjic, who wanted the prisoners out of his jurisdiction. It was then that Colonel Beara turned up, a little tipsy. “I have orders from the top,” he announced, “that these people should be killed.” Deronjic told Beara that Karadzic had ordered the prisoners to be taken somewhere other than Bratunac. There was a prison at Batkovici, prompting Milosevic to suggest that Karadzic meant for the prisoners to be taken there to be questioned, not killed. Deronjic agreed. Yet he stuck to his belief that Beara was the messenger Karadzic had promised to send, for two reasons: no one else came, and Beara took charge of the prisoners. Of interest was the testimony in the Blagojevic case given by Momir Nikolic, who claimed to have been present at the meeting with Beara.31 He recalled hearing Deronjic explicitly say that the prisoners were not to be killed in Bratunac. In other words, Deronjic knew from his prior conversation with Karadzic as well as Beara’s “instructions” that Karadzic intended for the prisoners to be killed, not questioned. Whether Karadzic sent someone with orders to kill the prisoners or orders to question them, Deronjic’s evidence showed that Karadzic was intimately, continually involved with the Srebrenica operation. While the killings at the warehouse in Kravica and the on-site liquidation of prisoners taken in combat might be considered opportunistic, what happened subsequently was anything but. The mass execution of seven to ten thousand Bosnian Muslim males could not have been carried out unless there was substantial organization and coordination—and knowledge at the highest level, at the very least up to General Mladic. In fact, the Krstic court established that the VRS main 302  G e n o c i d e

staff was responsible for the genocide. Given Karadzic’s intimate involvement in the operation and his position as commander in chief of the army, it was unlikely that he remained ignorant until after the fact. Even if he had, he subsequently announced in the RS Assembly, after the massacre was generally known, “I approved that radical mission and I feel no remorse for it.”32 Was Karadzic referring to the takeover of the Srebrenica safe area or to the massacre of all boys and men of military age and the enclave’s ethnic cleansing? It is not clear, but the court considered the statement along with numerous other incendiary comments made by Karadzic to decide that the prosecution’s evidence proved genocidal intent on the part of the Bosnian Serb leadership. What was known was that neither the VRS nor its commander in chief ever punished anyone for the massacre of civilians and POWs. The trial chamber sentenced Deronjic to ten years in prison, following the prosecution’s recommendation. The short sentence reflected Deronjic’s extensive assistance to the prosecution through testimony in several trials. An appeals chamber affirmed the sentence, Judge Schomberg dissenting on the ground that the sentence was insufficient for the crime. Deronjic died of cancer in 2007. When Nice introduced the testimony of the Dutch Bat second in command, Lieutenant Colonel Robert Franken, by stating that Milosevic had acknowledged the commission of terrible crimes in Srebrenica, the accused protested loudly. Before beginning cross-examination he took the opportunity to clarify his position on Srebrenica, which he earlier referred to as “the ugliest thing that happened” in the war. “I want to make a remark to what Mr. Nice said that allegedly I accepted the crimes in Srebrenica. How can I accept what I know nothing about? I do know that police in Serbia when they first learned [of crimes in Srebrenica] . . . arrested [Drazen] Erdemovic. That’s what I know. That I’m interested in the real truth being known, yes. In Serb military tradition, to kill prisoners of war is among the most dishonorable of acts. If it happened, it could only have been done by someone who was an enemy to the Serbs, the Muslims and mad to boot.”33 Later Milosevic added that he did not believe the massacres could have been planned, nor that they were part of RS political and military strategy. And, “They had nothing to do with Serbia and Yugoslavia.” Franken was not present for the executions, but he could testify to the forced evacuation of women and children, the separation of men and boys, and events leading up to their disappearance. Milosevic spent considerable time questioning him about what happened before the fall of Srebrenica. He G e n o c i d e   303

attempted to show that Dutch Bat and its predecessors did not successfully demilitarize the safe area, as required by the UN mandate. Franken admitted, “Demilitarization was not complete but circumstances were so dangerous I wouldn’t have dreamt of handing over my personal weapons if I was obliged to.” He also testified, “The VRS repeatedly shelled the enclave,” while he only had knowledge of Bosnian action outside the enclave on two occasions, one when burning houses were observed, the other when seven VRS soldiers were ambushed and killed. After the fall of Srebrenica to Bosnian Serb forces, Dutch Bat was faced with a crisis of massive proportions, Franken testified. While those who sought protection numbered between twenty and thirty thousand, they had only enough food to feed four hundred people for two days. Water was wholly inadequate. The temperature was between 30 and 35 degrees centigrade (86 and 95 degrees Fahrenheit). The VRS had already taken Dutch Bat soldiers hostage and threatened to kill them if NATO air strikes, initiated after the VRS attack on Gorazde, were not stopped. Dutch Bat had 150 soldiers under arms, with a couple of hundred more providing other kinds of support. It had only 16 percent of the arms and ammunition that it should have had, and the VRS had taken sixteen to seventeen of its jeeps as well as APCs. The small battalion was at the mercy of the VRS and left on its own by UN superiors, who refused to authorize action to protect the idps. In a video clip made by a Bosnian Serb television journalist, refugees spilled out of a UN vehicle, so numerous that they covered every available piece of ground. Another clip showed women and children on a bus and a column of men being directed toward other vehicles. It is likely that almost all the faces on the video monitor were of men who would be dead within a few hours or days. It was a haunting, heart-wrenching scene. When Mladic told Dutch Bat commanders that his troops would separate all Bosnian men and boys from sixteen to seventy years of age to interrogate them about war crimes, Franken “became extremely anxious” for their fate. His soldiers reported seeing bodies of nine Bosnians executed in a field near the “white house,” where VRS interrogations took place. When Milosevic suggested that they had been killed in a fight among Bosniaks, Franken pointed out that the bodies were lined up in a row and all had been killed the same way, evidence of an execution, not a firefight. On their return, his soldiers who had escorted the first idp convoys out of the area told Franken of numerous bodies lying along the road. He learned of another execution in the compound and received reports that men who were supposedly bused to Kladanj had not arrived. All Franken could think to do was list the names 304  G e n o c i d e

of the Bosnian men remaining in the compound and fax the list to Tuzla, another safe area, and The Hague. The list only reached 251 names before all the men were taken away. Franken’s concern over the fate of the separated Bosnian men and boys was heightened by Mladic’s threats, conveyed to the Dutch Bat commander Ton Karremans. The prosecution showed video clips of a meeting between Mladic and Karremans, discussing the refugees’ fate. In one Mladic demands that the Bosnian Muslims give him a clear position on whether they want to survive or disappear. In another he speaks to a young man arbitrarily chosen to represent the idps: “Have I made myself clear, Nesib? The future of your people is in your hands and not only on this territory.”34 Mladic’s ultimatums showed that “he was supreme commander,” Franken said. He controlled the operation. On cross-examination Milosevic read more of what Mladic said on the transcript: “I want to help the Muslim civilian population which is not to blame for what has happened. . . . You can leave from here, all of you, or all of you may stay or all of you may die. I don’t want you to die.” Given what happened, either Mladic was playing to an audience or he was excluding men and boys of “fighting age” from what he saw as the civilian population. In reality, the women, children, and elderly had no choice but to get on the buses provided by the Bosnian Serb forces for their evacuation to Bosniancontrolled territory. And men and boys between sixteen and seventy had no choice but to remain until they too were bused, not to Bosnian territory but to the killing fields. In one line of cross-examination Milosevic attempted to establish that many of the bodies found in mass graves were of men who had died in combat or while trying to break through the VRS encirclement. Franken said he could only speculate, but there “should have been quite some casualties” in the breakthrough attempt. Milosevic asked, “Is it also true that instead of surrendering and acquiring the status of POW’s, the commander of the 28th Division chose the worst possible solution by ordering a breakthrough?” Though the witness said he did not know, the prosecutor clarified the matter on reexamination: “Did those who broke out survive?” The witness answered, “Part of them.” Nice then asked, “Did those who surrendered?” Franken simply answered, “No.” Milosevic also tried to establish that events at Srebrenica had been planned not well in advance but on-site, under UN direction. The witness responded that Dutch Bat took measures to evacuate the idps, but they “were massively harassed and prevented by the VRS.” When Milosevic persisted G e n o c i d e   305

Franken replied, “The fact that Akashi sends a telegram that the population is allowed to go to Tuzla is not evidence the VRS didn’t plan the operation.” Milosevic was more successful when he asked Franken about evidence of Belgrade’s involvement. Franken agreed that he had read the Dutch government’s report of 2001, concluding, “There are no indications that the action was launched in cooperation with Belgrade either in respect of political or military coordination.” Pressed by Milosevic, he added, “I did not have any evidence that it was launched in cooperation with Belgrade.” Franken’s testimony showed that killings leading to genocide were anything but acts of spontaneous revenge by individuals. The process directed by Mladic was orderly. Soldiers were clearly following orders and Mladic was clearly in charge. The genocide itself had been established in the Krstic trial. It was left to the prosecution to show that Milosevic knew of the plan and supported it either actively by providing the means to carry it out or passively by doing nothing to stop a process that he knew would end in a massacre. Dutch Bat has been faulted for cooperating in the forced ethnic cleansing of thirty thousand or more refugees from the enclave and for assisting in separating the men and boys whom the Bosnian Serbs then executed. Franken did not testify about Dutch Bat’s ignominious role in assisting the VRS operation. One is left with a question: If Franken was “extremely anxious” about what would happen to the men and boys who were separated, why did he allow Dutch Bat to facilitate the process? Milosevic’s Involvement

The prosecution produced evidence that Milosevic was warned of imminent disaster in Srebrenica. General Sir Rupert Smith, head of UNPROFOR at the time, identified a series of communications during the Bosnian Serb assault on Srebrenica, its takeover, and its aftermath. They indicated that Milosevic was kept abreast of UNPROFOR information and concerns. One code cable from Yasushi Akashi on 11 July 1995, as the massacre was getting under way, stated: “The BSA [Bosnian Serb Army] is likely to separate the military-age men from the rest of the population, an eventuality about which UNPROFOR troops will be able to do very little.” Nice continued, “Does it go on to say that ‘The fact that the Bosnian Serb Army will have practical difficulties controlling 40,000 people may mitigate against their desire to prolong or exacerbate the plight of the Srebrenica population?’” It was more hope than statement of fact. Two years before, Milosevic had stopped Mladic from taking the enclave because he feared a massacre, he told Lord Owen. Karadzic confirmed their 306  G e n o c i d e

fears in a statement to the RS Assembly in July 1993: “[I]f we had entered Srebrenica, those people entering would be those whose families were killed. 1,200 Serbs were killed; there would be blood up to the knees, and we might lose the state for that.” Milosevic asked the prosecution expert Robert Donia, “If someone has awareness of how disastrous such an act would be in 1993, surely they would have had the same awareness later on.” While he may have meant this observation to suggest that Karadzic, knowing this, would not have sanctioned the enclave’s takeover, it also supports the conclusion that Karadzic agreed to the assault on the enclave with the knowledge that it would end in a bloodbath. As well, it supports the conclusion that Milosevic failed to restrain the Bosnian Serbs from taking Srebrenica, knowing, as he did in 1993, that a takeover would be a disaster for the Bosnian Muslim population. But it would be easier to divide Bosnia and reach a peace deal if the map were “tidied up” by transferring the three eastern enclaves to the RS, whose territory surrounded them. Smith also authenticated a document he wrote on 13 July about his meeting that day with Prime Minister Haris Silajdzic of Bosnia. Referring to the VRS assault on the safe areas, Silajdzic said “that Belgrade was actively involved and no longer bothered to conceal this fact.” The prime minister raised concerns about reports of atrocities in the Srebrenica area, including the rape of young women in the Vlasenica area and the murder of a busload of refugees. The document showed that authorities on all sides were closely following events in Srebrenica and were apprehensive about what was unfolding. Unlike during the Croatian attack on the Krajina, when he was unreachable, Milosevic was at his desk in Belgrade and personally involved in the tense developments in the eastern enclaves. Evidence suggests that Mladic also kept Milosevic apprised of developments. David Harland reported that Carl Bildt and others saw Mladic with Milosevic in Belgrade on 7 July, the day after the attack on the safe area had been launched. On 15 July, the day after organized mass killings began, Smith attended a meeting with Bildt, Milosevic, Mladic, and others. According to Smith, Milosevic was clearly in charge of Mladic. He directed the general to sort out a solution with Smith on recovery of Dutch Bat and access to prisoners, and Mladic immediately complied. When Nice asked Smith to describe the two men’s relationship, the general began by describing how power was exercised in the Balkans generally: “All power was absolute and whoever had it exercised it absolutely.” He went on, “General Mladic had his own place to exercise power and only when it interfered with the business of Mr. Milosevic and Serbia did he get interfered with or controlled.” Bildt, in G e n o c i d e   307

his account of the meeting, suggests that the relationship between Milosevic and Mladic was more complex. While Milosevic could order or persuade Mladic on some issues, on others he could not (such as allowing the UN complete freedom to resupply its forces in Sarajevo, including the freedom to provide ammunition that could be used against the VRS). Nevertheless, Bildt maintained that Milosevic could have stopped the attack on Srebrenica.35 At the meeting of 15 July none of the international team knew about the massacres at Srebrenica the day before. Milosevic insisted that neither he nor Mladic knew either. General Smith took exception: “I did not know there had been massacres in Srebrenica. Just because I didn’t know it doesn’t follow that you and Mladic didn’t know.” When pressed by Milosevic, the general admitted that he had no direct personal knowledge of Serbian or Yugoslav involvement in Srebrenica, but he insisted that because he “could deal with Mladic about [humanitarian aid] convoys moving through Serbian territory,” there was a direct link between Milosevic and Mladic. When Milosevic suggested that this link, and an agreement to give ICRC access to Srebrenica, showed his concern for human rights, Smith testified that the agreement was not honored: “The ICRC was not given access to holding areas because all the people in them had been murdered.” Milosevic assumed the role of someone who had no personal knowledge of the events in Srebrenica and was asking the general to inform him about them. Milosevic suggested that VRS forces attacked the safe area to “demilitarize it.” He had heard that the Bosnian 28th Division of twelve to thirteen thousand men was operating from the enclave, attacking Serbian forces and villages. Smith described a different situation: “Muslim forces within the enclave were small, smaller than I expected, lightly armed and were conducting raids out from Srebrenica into Serb held territory. There was also some traffic between Srebrenica and Zepa and maybe Srebrenica and Tuzla. . . . I would be surprised if there were in excess of 1200 armed men, [though there] may have been 12,000 men [without arms].”36 He concluded that the only substantial fighting occurred when Serb forces attacked the enclave. Milosevic then made one of his more astonishing assertions in the trial: that the UN special envoy Yasushi Akashi was responsible for the ethnic cleansing of Srebrenica. He drew this conclusion from a communication from Akashi to UN headquarters on 11 July, in which Akashi suggests that idps from Srebrenica might be resettled in Tuzla. As Smith pointed out, Akashi was making a suggestion for dealing with the refugees from the VRS takeover. Milosevic responded that this was all the Bosnian Serbs were doing.

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Milosevic, not a stupid man, was not serious about this accusation, but it played well among his supporters back home. Smith was adamant on one point: Mladic had responsibility for what happened in Srebrenica, because he was the commander throughout the campaign. “He was certainly there at the time of the attack and its immediate aftermath,” he testified. Milosevic asked him, “On the basis of your impressions of General Mladic, can you assume that his military honor would allow him to tolerate killing prisoners of war and civilians or something as dishonorable as that?” “Yes,” Smith replied. Cross-examining David Harland a few days earlier, Milosevic denied having met with Mladic in Belgrade on 7 July. It was an official holiday, he said. “I don’t believe it could have happened.” The accused insisted that he first learned of the Srebrenica massacres from the international envoy Carl Bildt at a meeting on 15 July with Bildt, Akashi, Thorvald Stoltenberg, General Smith, and Mladic. Harland responded, “I just challenge one aspect. General Mladic must have known there was a massacre going on at Srebrenica. He’s on TV in Srebrenica in the hours before it begins. A number of people I spoke to on the Serb side confirmed his role in ordering the massacre. All of us in Belgrade in this period and Ambassador Bildt confirmed he saw General Mladic with you. He did know. It seems surprising he would fail to mention the deaths of 7,000 people to you.” “Everyone learned about it later,” Milosevic insisted. Harland strongly disagreed.37 According to Bildt, it was early August when he began to understand what had really happened, not at the meeting on 15 July.38 Finally, evidence given by Miroslav Deronjic strongly indicates that Milosevic knew, at least by 9 July, that the Bosnian Serbs intended to kill all males in Srebrenica. On that date Deronjic arrived in Pale to find Milosevic’s security chief, Jovica Stanisic, with Karadzic and Krajisnik. It was clear that they had been discussing Srebrenica. And it was then that Karadzic, in an aside, told Deronjic of the necessity to “kill them all.” It is impossible to believe that Stanisic was in Pale without his boss’s direction and that he did not report back what the Bosnian Serbs were planning.

An RS police order of 10 July 1995, given the day after Stanisic had a conversation with Karadzic about Srebrenica, supported a conclusion that Serbian forces (VJ and MUP) were involved in the Srebrenica operation. Almost unnoticed, the prosecution’s police expert, the mild-mannered Dr. Budimir

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Babovic, referred to an order with potentially explosive consequences for the accused: “The MUPS [MUP Serbia] participation in combat operations outside Serbia is confirmed by an order from the Republika Srpska MUP of 10 July 1995, which mentions ‘a mixed company of the joint forces of the MUP of the RSK, Serbia and Republika Srpska.’ According to this order, the company took part in combat operations at the Sarajevo front and was assigned to the independent unit which was ordered to go to the Srebrenica area ‘in order to quash the enemy offensive from the Srebrenica protected area’” (emphasis added).39 More documents surfaced during the defense case showing the presence of Serbian forces in Bosnia at the time of Srebrenica’s takeover and the subsequent massacre. The most significant, the smoking gun, was hidden from public view at the request of the Serbian government. It is discussed below. The prosecution also highlighted events after the massacre in Srebrenica to support its charge of genocide. Speaking before the RS Assembly less than a month after the massacre, Karadzic said, “Lieutenant Colonel Milutinovic . . . gives catastrophic pictures to foreign news agencies. These could cost Mladic if they are shown at The Hague. He allows those who wish to take pictures of the corpses of women on the streets of Srebrencia and then releases them to foreign media.”40 At the session of 22–23 October he again demonstrated concern about being held accountable by an international tribunal: “I will not tolerate, I must say, that the people are intimidated, and I ask the journalists not to write about this. I must again point out an example of this court in Nuremberg” (emphasis added).41 In October 1995 Milorad Dodik (later president of the RS) told the Assembly, “[O]ur greatest mistake of the war was Srebrenica and Zepa, and someone has to take responsibility for that. . . . Who is responsible?”42 Dodik felt that the attack on the safe area established a precedent for the assault by the Croatian army in August on the Krajina, costing the Bosnian Serbs considerable territory and ultimately forcing them to the peace table. By attacking safe areas, he said, the RS had ceded the right to complain. This and other excerpts of Assembly sessions do not show remorse at the killing of thousands of civilians—only distress at the repercussions and reversal of fortunes in the war. At the 54th session another delegate, Jovan Spremo, attempted a response to Dodik’s question: “Gentlemen, we never wanted to admit that our shells fell [on civilians]. I know personally that neither the High Command nor the Main Staff did that. They never gave such orders, but that was done by

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some aspiring and irresponsible individuals. We needed, and in the future we should recognize, that this happened, but we should say that it was done by irresponsible individuals who will be arrested. Then we just need to report some sentence as a charade. Look what Mr. Tudjman does” (emphasis added).43 While the delegate attempted to exonerate the VRS leadership, he inadvertently implicated all those in the chain of command for failing to take disciplinary action against the “irresponsible individuals” who committed ­genocide. At a meeting on 29 July, two weeks after the massacres, the FRY Supreme Defense Council officially decided to continue assisting the RS and RSK. General Perisic, head of the VJ, discussed ongoing help to their militaries. According to public transcripts of SDC meetings, Srebrenica was not mentioned at this or other SDC meetings even after the killings became widely known. When Mladic attended on 23 August, SDC members including Milosevic treated him with respect, even as a hero. Milosevic demonstrated his willingness to continue using the general’s reputation for violence as part of his strategy to overcome Bosniak resistance to the peace deal he wanted. Referring to the remaining safe areas, Milosevic threatened, “If the Muslims refuse the peace solution they will be told that they are to be left alone with the sword of Damocles hanging over them in the form of General Mladic.”44 Not only did Milosevic make no attempt to disassociate himself from Mladic’s violence, he approved it and continued to support the Bosnian Serbs. As Karadzic said at the RS Assembly Session on 28 August, “[G]entlemen, you must know that we have created a structure that depends on Yugoslavia and that is tied to Yugoslavia in pay, pensions, use of arms and ammunition, etc., and though we have paid for a good part of it, we have received a good part.”45

A member of the team that negotiated the Dayton Accords ending the war in Bosnia, General Wesley Clark strengthened the link between Milosevic and Srebrenica. On 17 August, one month after the massacre, Clark, Richard Holbrooke, and others met with Milosevic to discuss plans for negotiations. Clark asked whether the team should deal with him or the Bosnian Serbs. Milosevic replied, “With me, of course.” He assured the negotiators that he could deliver a peace agreement the Bosnian Serbs would sign. The general remarked that it seemed improbable for the president of one country to be able to guarantee acceptance by another country. Milosevic, confident of his

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status as leader of the Serbs, responded that a referendum would be held in Serbia; the Bosnian Serb leadership would not go against the will of the Serbian people. Clark told the court what happened next: “I approached President Milosevic as he was standing there in a casual setting outside the formal meeting, and I was still wrestling with the idea as to how it is that Milosevic could maintain that he had the authority and the power to deliver the [Bosnian] Serb compliance with the agreement. And so I simply asked him. I said, ‘Mr. President, you say you have so much influence over the Bosnian Serbs, but how is it then, if you have such influence, that you allowed General Mladic to kill all those people in Srebrenica?’ And Milosevic looked at me and he paused for a moment. ‘Well, General Clark,’ he said, ‘I warned Mladic not to do this, but he didn’t listen to me.’ ” Clark explained, “[I]t was very clear what I was asking was about the massacre at Srebrenica. When I said ‘kill all these people,’ it wasn’t a military operation, it was the massacre. And this was in fact what had been in the news. . . . He was answering that he did know this in advance, and he was walking the fine line between saying he was powerful enough, influential enough to have known it but trying to excuse from himself the responsibility for having done it.” Milosevic’s admission to Clark might also be considered exculpatory. He warned Mladic not to do it (undertake a campaign to kill Bosniak prisoners en masse). On the other hand, Milosevic contended that he had great influence over Mladic, enough to make him lay down arms and accept whatever territorial division Milosevic could obtain for the Bosnian Serbs at Dayton. Transcripts of sessions of the Bosnian Serb Assembly as well as testimony from David Harland, General Morillon, Lord Owen, and Michael Williams established that Milosevic had had sufficient influence over the Bosnian Serbs to prevent attacks on Gorazde a year earlier and on Srebrenica two years earlier. And as Clark pointed out, there was no way to know if Milosevic was telling the truth about warning Mladic not to proceed. For the first time in the trial, Judge May asked Milosevic a direct question about the evidence: “Did you speak to the general at all about Srebrenica?” Though not under oath, Milosevic responded, “Not at all. There was no mention whatsoever of Srebrenica. And I’m talking about our general position that there should not be any military operations whatsoever. Heaven forbid discussing any kind of killing of civilians.” Clark’s testimony was supported by his contemporaneous notes and communication of the conversation to others. One contemporaneous communication was intercepted by Tudj-

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man’s office shortly after the meeting. Its introduction in court corroborated Clark’s account of Milosevic’s admission. At Dayton, Clark worked on a military annex to the accord authorizing the placement of NATO troops in Bosnia. He ran into a major obstacle when Krajisnik, president of the RS Assembly, rejected nearly the entire draft that the general had worked out. Responding to Milosevic’s direction to let him know of any problems, Clark did. The Draft Military Annex was soon returned to him with only minor changes. When Nice asked what it revealed about decision making, the general replied, “[I]t revealed to me that President Milosevic was fully in charge of the delegation.” Another revealing incident at Dayton occurred when Milosevic literally gave away Krajisnik’s farm without consulting him, simply by drawing a red line on a map that transferred Bosnian Serb territory to the Bosnian government. At the end of negotiations Milosevic, not the Bosnian Serbs, initialed the agreement. Early in cross-examination and likely in an effort to rattle Clark, Milosevic accused him of responsibility for the deaths of three colleagues, killed when their vehicle ran off a road on Mt. Igman near Sarajevo. Clark and Holbrooke were in another vehicle and were unhurt. The incident followed a meeting with Milosevic, at which the negotiators attempted to lay the groundwork for Dayton. Before leaving the meeting, Holbrooke’s group asked for a guarantee of safe passage through Bosnian Serb checkpoints. After telephoning Mladic, Milosevic said he would not give it. As a result the negotiators took a back road, where the accident happened. Milosevic insisted that he had handed Holbrooke a guarantee, but he refused it “out of his very own vanity.” “You cannot remember that, General Clark?” he taunted. “Four [sic] of your fellow members of the delegation got killed then because of your vanity.” Clark did not take the bait. He calmly repeated that they took the back road because the Bosnian Serbs would not give them a guarantee of safe passage, addressing the court (not Milosevic), as he did throughout his testimony. Clark was unwilling to give Milosevic the credit he craved as peacemaker of the Balkans. Challenging Clark’s characterization of his asserted power to deliver the Bosnian Serbs’ agreement at Dayton, Milosevic argued, “Well, the essence is wrong, general, because what we’re talking about here is exclusively my commitment, my persistent insistence on questions of peace and no others.” He reiterated, “General Clark, my leading role in achieving peace is not in dispute, but now this role and the result achieved is being placed in quite a different context by you. Do you realize that?” Clark gave the court a different view of Milosevic’s peacemaking:

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The reason that this is significant is that his leadership role, I’m asserting, wasn’t only about peace, it was leadership, and it was a combination of strategies using force, using intimidation, bullying, and then going to the international community and pursuing peace. . . . We knew that his influence was not limited to seeking peace but that he had influence, period, over the Bosnian Serbs. No one knew and could say precisely how much influence. . . . [W]e knew that he could see the gains that the Serbs had made being erased by the countervailing military action of the Croats and the Bosnian Muslims and that therefore it was logical that he would attempt to hold on to what he had by trying to follow through on a settlement of fighting that preserved as much of the territory for the Serbs as possible. That’s the motivation that we entered assuming him to have, and this discussion simply puts the frame of reference that we went to him and we asked him should we deal with him or should we deal with the Bosnian Serbs directly, and he said with him. It was the clearest description the court had heard of Milosevic’s role and his motivation to negotiate an end to the fighting. Milosevic saved his most damning accusation against Clark until late in cross-examination. He read from an interview published on 17 November 2003 in the New Yorker with General Hugh Shelton, chairman of the U.S. Joint Chiefs of Staff when Clark commanded NATO forces: “I will tell you the reason he came out of Europe early. It had to do with integrity and character issues. Wes won’t get my vote.” Shelton was referring to Clark’s candidacy for the Democratic presidential nomination in 2004. Smiling as if he had anticipated the question, Clark corrected Milosevic. Shelton was not his superior. He reported to Secretary of Defense William Cohen and to the NATO secretary general, Javier Solana, during the Kosova war. Clark read laudatory comments from Cohen that included the following, “Faced with an adversary who manufactured a vicious humanitarian nightmare, you responded with compassion and speed to relieve human suffering. Faced with an adversary who tried to maximize civilian death and misery, you responded by minimizing the suffering of the innocent.” Giving him an opportunity to explain his side of events, Milosevic asked Clark why he was removed early from his post as supreme allied commander in Europe after the Kosova war. “In all candor, there was a policy difference between General Shelton and myself. I believed that the United States and NATO . . . could not permit another round of ethnic cleansing in the Balkans led by the accused, and I worked hard to warn the United States government 314  G e n o c i d e

of what was going to happen, and I provided policy recommendations, and my recommendations were accepted. The United States acted, and it acted to halt in progress a round of ethnic cleansing. Some people in Washington may not have agreed with that, but that’s what we did. I’m very proud of what was accomplished, and we saved a million and a half Kosovar Albanians from ethnic cleansing.” Milosevic responded, “You caused a humanitarian catastrophe, General Clark. You didn’t save anyone.” Clark had the last word when the court delayed adjournment by a few minutes to receive a fax, which they allowed Clark to read into the record, “Contrary to Mr. Milosevic, General Wesley Clark carried out the policy of the NATO alliance to stop massive ethnic cleansing in Kosovo with great skill, integrity, and determination.” It was signed “Bill Clinton.”

Unknown to the public, in spring 2003, over a year after the trial started, Belgrade turned over minutes of the Supreme Defense Council that the prosecution had long been seeking. They were explosive. As Carla Del Ponte wrote in her memoir, “The records [of the SDC] show that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.”46 Because the tribunal permitted Belgrade to keep this information confidential, in one of its least defensible decisions, the records did not appear in the trial’s public record.47 As a result, no more details are available.48 When the prosecution formally asked the court to order Serbia to turn over SDC transcripts, Serbia petitioned to keep significant parts confidential, claiming that exposure would jeopardize vital national interests. Serbia’s vital national interests involved keeping evidence of Serbia’s and Milosevic’s participation in the Bosnian genocide out of court proceedings at the International Court of Justice, where Bosnia had sued Serbia for genocide, asking $20 billion in damages. If Bosnia were to win, government representatives explained, Serbia’s fragile economy would be significantly affected. In her memoir Del Ponte argues that protecting a state from liability for egregious harm caused by its leaders is not a valid national security interest, which is what ICTY rules require for confidentiality (Serbia cited “vital national interests”). After the close of the Milosevic case, Nice accused Del Ponte of agreeing with Serbia not to oppose the protective measures it sought from the court in exchange for handing over the documents. Del Ponte stressed that she only agreed to support “reasonable” requests for con-

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fidentiality, case by case. In her defense, she pointed out, “[t]he fact that the issue bounced back and forth between the Trial Chamber and Appeals Chamber clearly indicates that the prosecution found the requested protective measures to be unreasonable and appealed.”49 Though Del Ponte is restricted in what she can reveal publicly about confidential court proceedings, her assessment of a conversation with the federal foreign minister about the nature of the documents is damning: “Svilanovic once again mentioned the genocide lawsuit against Serbia before the International Court of Justice, clearly implying that he knew the information the documents contained would be catastrophic for Serbia if the judges at the International Court of Justice ever obtained it.”50 At a meeting on 17 February 2003, Svilanovic told Del Ponte that a conviction of Milosevic for genocide would hurt Serbia in Bosnia’s ICJ lawsuit, a reason for keeping evidence that would incriminate Milosevic out of the hands of the prosecution. This explains why the government was so protective of its archives and the SDC minutes. When Serbia finally turned over Mladic’s personnel file, which the prosecution had sought for years, it was missing an assessment of his performance during 1995, the year of the Srebrenica massacre—a further indication Serbia had something to hide. Though Serbia had been actively withholding evidence, the tribunal nevertheless granted its motion to keep confidential several documents that tied Serbia and Milosevic to genocide. State sovereignty once again trumped justice. Since the court had access to the material, its confidentiality would not affect the judgment. That was not true in Bosnia’s lawsuit against Serbia in the ICJ. In another indefensible judicial decision, the ICJ majority refused Bosnia’s request to order Serbia to provide the original uncensored documents to them. The ICJ went on to decide that Serbia had not committed genocide in Bosnia, nor been complicit in genocide.51 The prosecution’s evidence on Serbia’s role in Bosnia, and Srebrenica in particular, did not end with the close of its case in chief in February 2004. Over a year later shocking evidence came into its hands. The prosecution’s dilemma was how to introduce it into the court record after closing its case. That turned out to be an insurmountable hurdle. Milosevic Must Answer Genocide Charges

In its Decision on the Motion for Acquittal, the trial chamber cited the following statements by Radovan Karadzic to show the genocidal intent of the Bosnian Serbs:

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Acquittal at Close of Prosecution Case A motion for judgment of acquittal is a procedural technique to expedite the trial. At the close of the prosecution’s case the accused may submit a motion arguing that the prosecution has failed to present sufficient evidence to support all or some of the charges. The court reviews the prosecution’s evidence to make this determination. It does not weigh the evidence or assess the credibility of witnesses at this stage. But where the prosecution has clearly not produced evidence to sustain charges, the court acquits the accused of those charges.

They [Muslims] will disappear, that people will disappear from the face of the Earth. . . . They do not understand that there would be bloodshed and that the Muslim people would be exterminated.52 In just a couple of days, Sarajevo will be gone and there will be five hundred thousand dead, in one month Muslims will be annihilated in Bosnia and Herzegovina.53 First, none of their leaders would survive, they’d all be killed in three to four hours.54 Don’t think you won’t take Bosnia and Herzegovina to hell and Muslim people in possible extinction. Because, Muslim people will not be able to defend itself [sic] if it comes to war here!55 They want us and the Croats to remain in a unified Bosnia so that we control the Muslims. We cannot be in that unified state. We well know, where fundamentalism arrives, you cannot live any more. . . . This conflict was incited so that the Muslims would not exist.56 It was not only Radovan Karadzic who held these views. Biljana Plavsic, member of the Bosnian Serb presidency, told Lord Carrington’s representative Colm Doyle that Serbs deserved more territory than Croats and Muslims, “and if it took the lives of three million people to solve the problem, then they should get on with it.”57 The Bosnian Serb health minister, Dragan Kalinic, addressed the RS Assembly: “[K]nowing who our enemies are, how perfidious they are, how they cannot be trusted until they are physically, militarily destroyed and crushed, which of course, implies eliminating and liquidating their key people.”58 The RS Assembly president Momcilo Krajisnik stated before the Assembly, “Believe me, it would be the greatest tragedy if the Muslims accepted to live together with us.”59 G e n o c i d e   317

The court held that the prosecution’s evidence could support a finding of genocide in seven municipalities: Srebrenica, Sanski Most, Brcko, Prijedor, Bijeljina, Bosanski Novi, and Kljuc. Apart from Srebrenica and the camps, the acts constituting genocide were mostly perpetrated at the beginning of the three-and-a-half-year war in Bosnia. Evidence that the court found sufficient included demographics, expert reports, and witness testimony, most of it in transcripts from other trials (none of which had found genocide to have existed outside Srebrenica). In terms of demographics, the court pointed out that the Muslim population in the area relevant to the Milosevic case had fallen from 344,803 in 1991 to 7,933 in 1997–98, or by about 97.7 percent.60 The judges also noted that Bosnia’s mosques were targeted. According to Andraś Riedlmayer’s expert testimony, all 277 mosques he surveyed were damaged and only 22 lightly damaged. The court found salient that “[i]n a number of cases mosques were not only razed to the ground, but the site was cleared and other objects were placed on the site, such as rubbish dumps.”61 Prosecution evidence, the chamber concluded, supported a finding that the Serbian forces, including paramilitaries and special police units from Serbia and the JNA, as well as Bosnian Serb forces, had swept through Eastern Bosnia in the war’s early days, taking town after town, village after village, and either killing or driving out the non-Serb population. As mentioned above, after the first few weeks of the Serbian attack Bosnian Serbs controlled 70 percent of Bosnia and held it until the last months of the war. In Brcko two thousand of the three thousand civilians who did not get out were either killed or missing.62 Only one male survived in Lukavica village, Sanski Most municipality. In Prijedor “a witness saw between eight and ten military trucks transporting Muslim bodies from the Brdo area.”63 Also from Prijedor, approximately a hundred men were taken from a bus, made to kneel at a cliff’s edge on Vlasic Mountain, and executed, their bodies falling or pushed over the precipice. Prijedor municipality was the location of the infamous concentration camps Omarska, Keraterm, and Trnopolje, where prisoners were starved, brutally beaten, tortured, raped, and killed. In one incident at Omarska camp near the end of July 1992, about a hundred people from Brdo village were taken to an execution center called the “white house” and killed.64 A Bosnian Serb police officer testified that on 24 July 1992 he saw between 100 and 150 bodies at Keraterm camp. In Trnopolje, where most of the women and children were held, women were gang-raped. “These rapes caused terrible fear and mental trauma among all the prisoners,” the court noted.65 In Sanski Most municipality all male inhabitants of the hamlet of Begici were killed.66 318  G e n o c i d e

From this and other evidence, the chamber concluded: On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence set out [above]. . . . The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centers and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide.67 Evidence was sufficient, a majority of the trial chamber concluded, to sustain a charge that Milosevic shared with other members of the joint criminal enterprise the intent to destroy a part of the Bosnian Muslim population. The majority cited evidence of his leadership position among the Serbian people, including those in Bosnia; his advocacy and support for the concept of a Greater Serbia; the logistical and financial support that Serbia gave to the Bosnian Serbs, which the court found logical to infer was provided with Milosevic’s approval; Milosevic’s close relationship with the Bosnian Serb leadership and his authority and influence over it; his insistence on being informed and his knowledge about everything that was happening. What the court did not reveal was the extent to which confidential documents, specifically the sDC minutes that Del Ponte claims show Serbia’s involvement in the Srebrenica massacre, influenced its decision. Expert testimony established that “the Accused’s policies and rhetoric helped those Bosnian Serb forces move from marginal to dominant political positions.”68 Further, “the Accused’s regime . . . took a variety of actions directly and indirectly aimed at aligning Serbs in Bosnia and Herzegovina and Croatia with Belgrade, and against the newly elected governments of those republics.”69 “All of these actions were aimed at promoting a territorial, rather than a political, solution to the re-emerging ‘Serbian problem.’ ”70 The court also pointed to Serbia’s use of propaganda to accomplish its war aims.71 In rejecting the motion at the close of the prosecution’s case to acquit Milosevic on the genocide charges, two of the judges found the evidence sufficient to sustain a charge that Milosevic shared with other members of the G e n o c i d e   319

joint criminal enterprise the intent to destroy a part of the Bosnian Muslim population. Judge O-Gon Kwon dissented, because he did not believe that the evidence supported a finding of specific intent. He did agree with the majority as to the sufficiency of evidence that Milosevic should have foreseen genocide as a reasonable consequence of the joint criminal enterprise of which he was a part. For that reason, Judge Kwon maintained, he could also be found guilty of genocide. Finally, the court found sufficient evidence to support a conclusion that Milosevic had command responsibility over others who intended genocide, but failed to prevent or punish them.72 Among the evidence the court cited in support of its conclusion was his de facto control over the JNA (through influence over the Yugoslav presidency and the army’s top brass), its finances, and the appointment of loyal JNA officers; his de jure and de facto control over the Serbian MUP and SDB; his control over paramilitary groups such as Arkan’s Tigers; his representation of all forces operating in Bosnia in international negotiations; and his intimate knowledge of events and crimes occurring on the ground in Bosnia.73 Also, the court held, the prosecution had introduced sufficient evidence to support charges that Milosevic aided and abetted or was complicit in the crime of genocide and failed to exercise his authority over those who committed it. The trial chamber suggested, “[T]he proper characterisation of the Accused’s liability in this case may be complicity in genocide,” noting a final determination was premature.74 No conclusions about the court’s final judgment can be drawn from its decision denying the motion to acquit. Nevertheless, it left the door open to taking a broad look at what the Bosnian Serb leadership was up to with its four-year campaign to drive non-Serbs out of Bosnia. That broad focus can only be given in a leadership trial encompassing more than individual incidents. To date, while the tribunal has established that genocide occurred at Srebrenica, it has not convicted a primary perpetrator. General Krstic’s guilty verdict for genocide was reduced by the appeals chamber to aiding and abetting genocide. With the arrest of Radovan Karadzic in September 2008, the tribunal has an opportunity to rectify that. Moreover, four Bosnian Serb military and civilian leaders are on trial for genocide and conspiracy to commit genocide in the Srebrenica Seven trial, as is Zdravko Tolimir in a separate trial. At the end of the prosecution’s case the court dismissed 130 factual allegations in the Croatia and Bosnia indictments which the prosecution’s evi320  G e n o c i d e

dence failed to support, most conceded by the prosecution. None eliminated any of the sixty-six charges in the indictment (showing that the prosecution could have narrowed the indictment). Nor were any allegations dismissed from the Kosova indictment. Genocide and complicity in genocide remained among the charges that Milosevic had to answer.

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Interregnum Chapter 12

Radical Changes

The year 2004 turned out to be intermission in the Milosevic trial, though an eventful one. The prosecution completed its case in February. The presiding judge fell ill, resigned, and died in July. A replacement judge was appointed. The trial chamber issued its decision that the prosecution had produced enough evidence to support its case, including the charge of genocide. The defense case was delayed again and again by Milosevic’s illness, exhaustion, and manipulation, leading the court to a “radical review” of the trial and ultimately the appointment of counsel. Milosevic angrily objected and refused to cooperate. His supporters organized a boycott of defense witnesses, making it impossible for appointed counsel to carry on. When the court refused their application to withdraw, defense counsel threatened to walk out. The witness boycott ended when a five judge panel of the appeals chamber, led by President Theodor Meron from the United States, ruled in favor of Milosevic. The year ended with two weeks of Milosevic leading his defense. In the process the court’s newfound assertion of authority suffered a major setback.

In December 2003 Judge May looked pale. He slurred some words, forgot others. By January he was forgetting to caution witnesses not to talk about their testimony until it was concluded. As the prosecution case drew to an end in February 2004, Judge May missed court for the first time in two years. After the third day of his absence Milosevic also stayed away, with a recurrence of high blood pressure. The prosecution bowed to circumstances and ended its case early.

Rumors abounded, fed by the tribunal’s culture of secrecy.1 The tribunal’s president did not want the public to know the seriousness of Judge May’s condition. Leaks were inevitable. It was not long before the New York Times reported that Judge May had a brain tumor. Tribunal halls and public airwaves crackled with speculation over its effect on the trial. Could a new judge familiarize himself or herself with thousands of pages of documents and three hundred videotaped trial days so that the trial could continue? Could a mistrial be declared under ICTY rules? After two years, would the trial begin again from the beginning, or would it end and Milosevic be set free? ICTY rules provide that the president may appoint a replacement judge if a sitting judge is unable to continue.2 The accused must consent, but the remaining judges may override non-consent if they decide that it is in the interests of justice for the case to proceed.3 Milosevic refused to say whether he agreed to a replacement judge. It was an administrative matter of an illegal tribunal, he declared, and he had nothing to say about it. President Meron interpreted his nonresponse as refusal to accept appointment of a new judge, returning the matter to Judges Robinson and Kwon, who decided in the interests of justice to let the case proceed. President Meron appointed an accomplished prosecutor and criminal trial judge, Lord Iain Bonomy, from Scotland, to replace Judge May. The panel elected Judge Robinson as its new presiding judge. Observers wondered how Robinson would approach his new role. Since Judge May as chief judge had primary responsibility to rein in Milosevic, Robinson had taken a conciliatory position with the accused, advising him in a friendly way and often favoring his position in evidentiary and procedural matters. Milosevic courted Judge Robinson, attempting to play on the thirdworld status of his native country, Jamaica, in relation to the first-world powers that had attacked Serbia in 1999. When Robinson assumed the center chair, however, he also assumed responsibility to manage the trial. He made his position clear during the pre-defense conference, when he strictly limited Milosevic’s case to 150 days, the same allowed the prosecution, though the accused insisted that he needed to call 1,631 witnesses. Despite his newfound assertion, Robinson was not a strong presiding judge. Often it was the new Scottish judge who challenged Milosevic’s argumentation, irrelevancies, and time wasting. According to backroom gossip, Judge Bonomy was known at home as “the hanging judge” for his severity in criminal cases. He was also known as a judge who managed his courtroom with a heavy hand. Bonomy’s experience as a criminal trial judge and former prosecutor was an invaluable addition I n t e r r e g n u m   323

to a court suffering from the loss of Judge May’s practical expertise. Nor did Bonomy show reluctance to hold the accused accountable as May too often had done, though he lacked the power of the presiding judge to cut short repetitive and irrelevant questioning. Judge Bonomy showed that he was also up to the task of assimilating two years of testimony, documentation, and legal rulings. Milosevic’s defense was due to start in early June, after a three-month hiatus, but the court was forced to extend the adjournment when Milosevic fell ill. By July he was still unable to return to court. The doctor advised that his blood pressure was too high to begin the stressful work of presenting his defense. As the summer recess approached, with Milosevic no more ready for trial because of his poor health, the court finally took matters in hand. “The Chamber clearly is of the view that the time has come for a radical review of the trial process and continuation of the trial in light of the health problems of the Accused,” Judge Robinson declared. Steven Kay advised the court that it should take up both the accused’s ability to return to trial in the immediate future and his long-term fitness to stand trial at all. The prosecutor pressed the judges to impose counsel. “It is now essential if the case is to be properly concluded in a reasonable time that counsel be imposed.” Nice argued that Milosevic should be allowed to appoint someone of his choosing; if he declined, the court should step in. Nice suggested a video link to Milosevic’s cell, allowing him to view proceedings on days he was not able to attend. To all this Milosevic vehemently objected. “It is out of the question, as you know,” he thundered. “Nor will I ever agree to it. . . . I am going to examine my witnesses and will be present here in this room.” Unaware that he was undermining his position, he told the court of his doctor’s advice to work a maximum of three days per week, including time out of court. That would considerably reduce the number of trial days— perhaps to one a week—pushing the trial’s end out of sight. The trial chamber ordered an examination of Milosevic by an independent cardiologist to determine his fitness to represent himself and “the likely impact on the trial schedule should he continue to do so.” Referring to the latest medical report advising that Milosevic’s health problem could be expected to recur and considering the time lost because of his illness (sixty-six days during the prosecution’s case in addition to the abbreviated trial schedule), the court noted, “there is evidence that the health of the Accused is such that he may not be fit to continue to represent himself, and that his continuing to 324  I n t e r r e g n u m

represent himself could adversely affect the fair and expeditious conduct of the trial.” It was the clearest statement yet that the trial chamber was moving toward appointing counsel. The court rejected, for lack of evidence, Kay’s suggestion that the accused might not be fit to stand trial at all. The court found reinforcement for its position in Judge Wolfgang Schomburg’s handling of Vojislav Seselj, the notorious Serb nationalist who insisted on representing himself amid tirades in court. With evidence of Seselj’s obstructive behavior, Judge Schomburg and his two co-judges directed the registrar to appoint standby counsel who would attend all court sessions and be available to take over should the defendant disrupt proceedings.4 The Milosevic court noted that civil law countries like Serbia and Montenegro do not allow an accused to represent himself in serious cases, providing further justification for imposing counsel.5 The prospect of appointing counsel over the objections of an accused who insisted on representing himself set off a firestorm among lawyers and observers. On one side were those who argued that the right to selfrepresentation is fundamental, like the rights to practice one’s religion and speak freely on political issues. Any infringement, in this view, makes the trial unfair. On the other side were those who held that self-representation was a qualified right; the fundamental right was to a fair trial. From this perspective self-representation amounting to an obstruction of justice waived the right, since it made a fair trial impossible. The argument over the right to self-representation obscured the real issue, the tribunal’s legitimacy. To what extent, if any, may an accused use a trial for his own political purposes? From the beginning Milosevic made clear that he had no intention of defending himself before a body he considered illegal, but he would use whatever opportunity presented itself to make his political case to the public. He had appealed and lost his challenge to the tribunal’s legitimacy, established in the Tadic case long before he arrived.6 It all came down to Milosevic’s insistence that he would have his forum on his own terms, or he would not participate. It was not the right to defend himself that he championed. While the tribunal could not force him to participate, it could refuse to be his instrument for advancing a political agenda and undermining their authority. As Judge Schomburg stated in appointing standby counsel over Seselj’s objections, a defendant’s right to selfrepresentation may be limited if the interests of justice so require. The interests of justice include the right to a fair trial, the judge declared, “which is not only a fundamental right of the accused, but also a fundamental interest of the Tribunal related to its own legitimacy.” With the focus on the accused I n t e r r e g n u m   325

and his rights at trial, other interests were ignored, not least of which were those of the public and the victims of Milosevic’s crimes in seeing justice done. Before making its decision the court allowed Milosevic to give the opening statement for the defense case. As expected, he eschewed a legal defense for a political one. Having characterized it as a defense of Serbia and the Serbian people, Milosevic hardly appeared in the narrative he created. The accused objected to the decision by the court to give the prosecution three days for its opening statement, while allotting him only four hours. When Judge Robinson reminded Milosevic that he had been given two days at the outset of the trial and nearly another day when the Bosnia and Croatia cases started, Milosevic replied that these were merely opportunities to make statements. “This is opening argument.” That the statements were responses to the prosecution case seems to have escaped Milosevic. It was as if he saw two separate cases—the prosecution’s against him (Serbia, as he would have it), and his against NATO and the “international community.” For the first two hours Milosevic expounded on Serb victimization throughout the twentieth century. First he claimed that the Serbs were victims of a Vatican and German conspiracy which considered them an obstacle to religious and political dominance in the Balkans and throughout Europe. The Serbs were blamed for starting the First World War, and Hitler set out to destroy Yugoslavia in the Second World War through alliances with Croat Ustashas, Bosnian Muslims, and Kosova Albanians.7 Serbia stood in the way. As a result, Milosevic announced to general incredulity, “The biggest genocide was not in Nazi Germany, but against the Serbian people. It is one of the most concealed secrets of the 20th Century.” Milosevic attempted to connect events of the early half of the century with those at its end, weaving them together in an ongoing conspiracy, or as he called it, borrowing from the indictment against him, “a joint criminal enterprise.” In addition to the Vatican and Germany, the United States joined the enterprise as a controlling partner, while the European Community followed Germany’s lead. The goal of this enterprise, according to the accused, was to bring a new world order into being, an order based on global capitalism which required the breakup of the Soviet Union, Czechoslovakia, and Yugoslavia. In particular, Yugoslavia presented an alternative to capitalism that could not be tolerated. Even if all of this were true, it was not a defense and therefore, not relevant in the criminal case against Milosevic—though arguably the revival in Croatia in the 1990s of Ustasha symbols and rhetoric from the Second World 326  I n t e r r e g n u m

War was relevant as context and background.8 It was more of a stretch to maintain that the support of some Kosovars for Nazi Germany had anything to do with charges against Milosevic for overseeing the forcible deportation and murder of scores of Kosovar civilians in 1998 and 1999. After two hours the generally accommodating Judge Robinson interrupted to caution the accused, “It is questionable whether a lot of what you are saying is relevant to the case.” The judge warned Milosevic that continuing in this vein could affect his request for more time to present the opening statement. After the judge’s interruption the accused continued where he had left off. His most relevant comments concerned Kosova, which he began to discuss during the fourth and final hour allotted for his statement. It was part of a proper defense to argue that Serbia’s actions in Kosova were a legitimate response to terrorism, if that were established. It was also an appropriate defense to show that killings, forced displacement, and property damage were caused by NATO bombing or the KLA and not Serbia. However, it is hard to see how a claim that after leaving office Bill Clinton was responsible for the September 11 attacks on New York and the Pentagon had anything to do with Milosevic’s guilt or innocence for the crimes with which he was charged. During his opening statement Milosevic told the court that Clinton’s alleged policy of supporting the KLA “turned very brutally against Americans themselves,” claiming that members of Al Qaeda fought with the KLA in Kosova.9 Several times Milosevic opportunistically attempted to connect radical Islamic fundamentalism and international terrorism with the wars in Bosnia and Kosova. Serbia, he argued, fought two hegemonic world conspiracies, Islamic fundamentalism and global capitalism. The accused read a brief dialogue from General Wesley Clark’s book between the general, then commander of NATO forces, and Secretary of State Madeleine Albright, in which Albright asked whether Serbia would attack the civilian population of Kosova if NATO began air strikes. Almost certainly, Clark said; an attack could not be prevented. It would be a race between the amount of damage NATO could inflict on Serb forces and what Serb forces could do to the Kosovar civilians. Oddly, Milosevic related the conversation as evidence of NATO’s perfidy and Clark’s potential guilt for war crimes. He appeared not to comprehend that it stood as a potential admission of attacks by Serbian forces against civilians, a clear violation of international humanitarian law and one for which Milosevic, as commander in chief of those forces, was charged. He added that Clark equated fighting the KLA with fighting civilians. If true, Milosevic negated his reason for providing the example in the first place— I n t e r r e g n u m   327

that Clark foresaw and accepted civilian casualties, for it meant that he foresaw and accepted KLA casualties. The evidence thus far showed that it was Serbian forces under Milosevic’s direction who equated Kosovar civilians, often including women and children but particularly all men of fighting age, with the KLA. Although Milosevic used more than half his time on matters irrelevant to his defense, the court granted him another hour and a half, again rewarding him for defying it and for following his own agenda. It did not bode well for the next 149 days.

While the legal issues surrounding court-appointed counsel were being briefed and argued inside and outside courtroom 1, the court’s independent medical expert reported, with Milosevic’s treating physician concurring, “(1) the Accused has severe essential hypertension, (2) in the present situation, the accused is not fit enough to defend himself, and (3) should the accused continue to represent himself, the progress of the trial would be delayed significantly.”10 In its decision on the appointment of counsel, the court added, “Both doctors were at one in concluding that a hypertensive emergency, a potentially life-threatening condition, could develop. They could not have been clearer on each of these points.” Nor could they have been more prophetic. Confronted with this expert medical opinion, the court was compelled to act. On 2 September 2004 it ordered that counsel be appointed to represent Milosevic, a step it should have taken at the beginning of trial. The court stated, “The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber was that, based on its findings above, the risk to the health, and indeed the life, of the Accused and the prospects that the trial would continue to be severely disrupted were so great as to be likely to undermine the integrity of the trial process.”11 In a note of prescience, the court warned, “There was a real danger that this trial might last for an unreasonably long time or, worse yet, might not be concluded should the Accused continue to represent himself without the assistance of counsel.”12 The court held that it would have been irresponsible to allow Milosevic to continue representing himself under these circumstances. “No court, mindful of its duty to ensure a fair and expeditious trial and its inherent responsibility to preserve the integrity of its proceedings, could countenance this.”13 A further harbinger was the doctors’ conclusion that Milosevic was ma328  I n t e r r e g n u m

nipulating medications to influence his blood pressure. Not only had he stopped taking a prescribed drug for a time, but he also added a nonprescribed medication not available in the Detention Unit. Obviously someone had smuggled drugs into the DU, easier for Milosevic’s visitors than others, since as a self-represented accused he had special privileges, including a separate office and an unmonitored telephone line. It was yet one more example of how Milosevic manipulated the court’s efforts to accommodate his pro se status. The tribunal’s efforts to stop the abuse, including installation of a one-way viewing mirror to his “office” and increased vigilance in searching his associates, were unsuccessful. Nor was it able to establish who brought in the contraband. By manipulating his medical condition and acting as his own attorney, Milosevic was able to exercise considerable control over the trial schedule, securing numerous days off for self-induced medical problems. In the end it worked to his great disadvantage, as well as the disadvantage of those who sought a measure of justice in a completed trial and a verdict. After the court’s decision to appoint counsel, Milosevic loudly objected that he had an absolute right to represent himself, causing Judge Robinson to shut off his microphone. He advised the accused that he could file an appeal and directed amici to assist in filing it. When Judge Robinson asked counsel and Milosevic to make submissions on how to implement the decision, the accused shouted that there had been many lies and manipulations over the preceding two years and now, when it was time for the truth to be told, the court was denying him the right to tell it. Having given its reasons for appointing counsel, the court cut Milosevic off. “We will not hear you on assignment of counsel. We are dealing with modalities. If you have no submissions, so be it,” Judge Robinson concluded. Raising his arms in a dismissive gesture, Milosevic responded, “Then go ahead. Deal with it.” He proceeded to clear his desk. During the break that followed, the corridors rang with speculation on whether Milosevic would return to court or retire to his cell, ignoring the proceedings entirely. When the trial resumed Milosevic was in his usual place, though silent and belligerent. At the court’s suggestion the registrar appointed the amici, Steven Kay and Gillian Higgins, to represent Milosevic, since he had no intention of appointing anyone himself. Should he change his mind, the appointment would be reconsidered. In the meantime the newly appointed defense counsel confronted a client who would have nothing to do with them. To make matters worse for Milosevic, the court rejected Kay’s submissions on how the defense should proceed. Rather than allow Milosevic to I n t e r r e g n u m   329

question witnesses, present evidence, and make submissions to the court in the first instance with counsel essentially “mopping up” after him, the court directed Kay and Higgins to do so, while limiting Milosevic to questioning witnesses afterward—with the court’s permission. Had they not, nothing much would have changed, including the stress on Milosevic. The court’s ruling and Milosevic’s intransigence left Kay and Higgins with a dilemma. According to professional codes they owed a duty of loyalty to their client, as well as a duty to the court. While Milosevic would not instruct them on the defense he wanted, it was obvious from everything he had said that he insisted on a political defense, a defense of his country and not of himself. If the two attorneys honored their duty to the court, they could not provide a political defense. If they honored their duty to Milosevic, they could not provide a legal one. Given this, why did the two former amici accept the appointment in the first place? Most likely, they expected that the court would be more flexible and they could gain Milosevic’s cooperation. Their unique, in-depth knowledge of the trial may have impelled them to accept the assignment out of a sense of duty as well. Operating on hope and unable to communicate with the accused, they invited the first witnesses on his list to testify. Only five responded positively. The rest refused to come to court until Milosevic’s “fundamental right to represent himself ” was restored. Those who defied the court included ambassadors, politicians, and government officials of various states, discussed further below. While Milosevic was not permitted to call and question witnesses as he pleased, the court gave him the opportunity to participate to a much greater extent than others accused. He could examine and reexamine witnesses with the court’s permission, select and submit documentary evidence, and make final submissions on the evidence. He was allowed to present the opening statement for the defense case, the province of counsel in other trials. None of this enticed Milosevic. He demanded all or nothing. As Kay and Higgins struggled to mount a defense with Milosevic sitting stoically in the background, occasionally interrupting to protest or criticize, it was obvious that the accused was in a power struggle with the court. Everyone watched to see who would blink first. Milosevic Defies Court

In the meantime Kay and Higgins assumed their new duties. On 7 September 2005, for the first time in two and a half years, the chairs at the defense table were occupied. The lawyers’ curled wigs could be seen slightly to the 330  I n t e r r e g n u m

left of where the two had sat as amici. Like a dark cloud hovering over the proceedings, Milosevic was in his usual place, though relegated to silence. As soon as the proceedings began he shouted his first protest, demanding restoration of his right to represent himself. Judge Robinson turned off his microphone and directed Kay to call his first witness. With dyed hair and a strong professorial tone, Smilja Avramov, a retired professor and former legal advisor to the FRY foreign affairs minister, did not look her eighty-five years. She had been Milosevic’s teacher, she informed the court, going on to describe him as obsessed with preserving Yugoslavia, though a man with little power over people and events. This was in the early 1990s. She faulted him for cooperating with the “international community,” arguing that he was too weak in defending Serb interests. After Kay’s examination Judge Robinson asked Milosevic if he had additional questions. If he did, he should summarize their content so that the court could decide if they were relevant. Milosevic stubbornly replied, “You are suggesting to me that within something that is supposed to be considered my defence that I put additional questions. That is just cynical and nothing else.” When he tried to continue, Judge Robinson cut him off, summing up, “Your answer is no.” Setting aside the gentlemanly demeanor he used during direct examination, Nice pressed Avramov hard on her testimony, gaining a number of concessions. Much of her testimony, she admitted, was based on what she heard or read and not firsthand experience. She was not privy to what happened at the highest echelons of Serbian power, she said. Challenging her testimony about Milosevic’s reliance on a diplomatic solution, Nice elicited the witness’s reluctant agreement that the Yugoslav crisis could have been resolved peacefully if Milosevic had accepted the Carrington plan in October 1991: “All of you at the conference knew there was a potential for criminal violence of the worst kind if this matter wasn’t settled.” “Yes, quite,” she admitted, responding that this was why she opposed withdrawing the JNA to barracks. Nice also exposed the witness’s bias against the tribunal, which she had called “markedly anti-Serb.” She was shocked, she wrote, “when the indictment was issued against Karadzic and Mladic, two of the greatest characters in recent Serbian history.” She wrote this, Nice pointed out, one year and a month after the massacre at Srebrenica under Mladic’s command, asking if she still held that view of Mladic. The professor replied that she knew of some heroic feats that had saved civilians, Muslims as well as Serbs. She had a very high regard for him as a soldier. After Kay’s reexamination Judge Robinson reiterated to Milosevic that I n t e r r e g n u m   331

the court was disposed to allow him to question the witness if he requested it. The accused protested, “Had I conducted the examination in chief many questions would have been raised that your appointed lawyer was not about to raise.” “That is exactly why the Chamber designed the order the way it did,” the judge responded. The court wanted to make it clear that “at all stages the Chamber is allowing you an opportunity to participate.” Milosevic made clear that nothing short of letting him represent himself would be satisfactory. The next witness Kay brought did Milosevic’s case no good. James Jatras had been a senior analyst with the U.S. Senate Republican Policy Committee. He was a member of the Greek Orthodox faith, close to the Serbian diaspora and the Serbian Unity Congress for which his mother was a tireless campaigner. When asked by Nice whether he would consider the former American presidential candidate Michael Dukakis (ethnically Greek like Jatras) a pagan for not following Orthodox views on abortion, he responded without hesitation, “I certainly would.” Jatras also exhibited an extreme bias against Islam, having written that “Islam is the self-evident outgrowth of the darkness of heathen Araby,” denying its Judeo-Christian roots. In a speech Jatras proclaimed: “I will leave it to the specialists to calculate which—Islam or communism—can claim the greatest achievement as gigantic Christian killing machines.” Like Avramov before him, Jatras had no firsthand evidence about events in the indictment, which he freely admitted. That the court allowed him to testify at all was a mystery, possibly a concession to the difficulty Kay was having in securing witnesses. Jatras had written a highly criticized report for the Senate Republican Policy Committee in 1997, titled “Clinton Approved Iran Arms Transfers Helped Turn Bosnia into Militant Islamic Base.” The report was written to expose the alleged militant Islamic program of Izetbegovic and the presence of a militant Islamic network at work in Bosnia. On direct examination Jatras admitted that the existence of the network was “not officially confirmed.” “Is that a complete fabrication?,” he asked rhetorically. “Is it utterly inaccurate? I’m not in a position to say.” He went further in his candor, “I utterly agree I do not have direct knowledge of the goings on in Bosnia of this network.” His information, he said, came from a compilation of news reports and other sources in the public domain. Jatras had never been to Bosnia. And never having been in Kosova did not prevent Jatras from giving his opinion that the United States planned to attack Serbia at least by fall 1998 and was waiting only for a “trigger” event. He claimed that the trigger event 332  I n t e r r e g n u m

was the Racak massacre and in his report cited an anonymous administration official as his source. Despite the prosecutor’s objections and the dubious quality of the evidence, the court admitted it. During Kay’s examination of Jatras, Milosevic interrupted to complain: “Mr. Robinson, your lawyer has been spending the last two hours wasting time without allowing the witness to broach the main subjects he has direct knowledge of.” He did not say what those subjects were. Judge Robinson asserted the court’s authority: “I’ve stopped you. We have a procedure we will follow. You do not set procedure here. The Chamber sets it. Mr. Kay is now examining the witness. After that, I will ask you to consider putting questions.” Kay had his own complaints: “I am here and ready to take instructions from the Accused if and when he is ready to do so. I’ve been put in this position because he’s been found unfit to represent himself. Without instructions, I am attempting to put the defence based on his opening statement, witness list, and cross-examination.” Judge Robinson sought to reassure Kay: “The Chamber finds no problem with the way you are examining. It understands the difficulty. It would have been better if he had instructed you. If he wishes, he can instruct you and at the end he can ask to question the witness.” Invited to question the witness, Milosevic refused. At the end of Jatras’s examination Milosevic raised another protest. “Mr. Robinson, I would like to draw your attention to an obvious fact. We have spent three days on two witnesses and I have a list of 1600. Everything that is going on is to dilute and maim my defence.” Judge Robinson responded that Milosevic’s comments were improper and showed a need for Milosevic to instruct appointed counsel. Kay pointed out that he had not exceeded the time Milosevic and his associates foresaw for examining the first witnesses. Milosevic was being disingenuous. He knew that the court had given him a maximum of 150 days to present his defense case. The witness list would obviously need to be cut. Before moving on to the next witness, the court reiterated its willingness to let Milosevic participate—according to the procedure it had set out. “Should the failure of the Accused to cooperate result in material relevant to the case not [being] presented, he must bear responsibility for that.” The court concluded on a conciliatory note, “Mr. Milosevic, . . . we urge you once more to think carefully over the next few days about those matters and to meet with assigned counsel to discuss the situation . . . with a view to arriving at a satisfactory arrangement which will enable you to participate within the limits that your health places upon you, in the presentation of your defence. If the opportunity for the accused to participate in the presentation of his deI n t e r r e g n u m   333

fence is not grasped by him, the trial will nonetheless proceed and none can say there was injustice. We stress that the steps we have taken are designed to help you by protecting your health, securing the presentation of your case in the most effective way, and ensuring that the trial is conducted fairly and completed within a reasonable time.” Over the next days the tug of war between the court and the accused continued. It soon became apparent that Kay was in trouble. He could not secure any of Milosevic’s witnesses. Milosevic’s associates told observers that 265 proposed witnesses refused to testify unless the court changed its decision on representation. They would only testify on Milosevic’s terms. Like the accused, they refused to recognize the court’s authority. Kay noted that Milosevic’s associates had provided only forty-eight names of potential witnesses. Of the twenty-three he and his co-counsel had been able to contact, twenty refused to testify. Among the boycotting witnesses were high-ranking government officials from a number of states. Those named at trial were James Bissett, former Canadian ambassador to Yugoslavia, and George Kenney, former Yugoslav desk officer at the U.S. State Department. Bissett wrote that the proceedings had taken on the “characteristics of a Stalinist show trial” and were a “travesty of justice.” Kenney, who stated his belief in Milosevic’s innocence, called the trial a “political show trial with no legal legitimacy.”14 Marlise Simons in the New York Times disclosed that four German, two Russian, and five French persons on Milosevic’s witness list, “mostly high ranking officials,” also refused to testify before the ICTY unless the court reinstated Milosevic’s right to represent himself.15 The court, incredulous over their attitude, advised Kay that he could apply for subpoenas, though their power to compel rests with the state where the person being subpoenaed resides. Kay was reluctant to take this step, foreseeing difficulty dealing with uncooperative and potentially hostile witnesses. The boycott by government officials was an outrageous affront to a legally established institution of justice, an action that would not be tolerated in the officials’ own countries. There was a legal procedure in place to challenge the court’s decision assigning counsel to Milosevic—appeal to the higher chamber—which had been set in motion. For potential witnesses in their positions to defy the court because they did not like one of its decisions showed grave disrespect for the rule of law. Kay’s inability to secure potential witness names and contact information beyond the forty-eight provided by Milosevic’s assistants elicited an astonished response from Judge Bonomy: “Are you saying there is a determined 334  I n t e r r e g n u m

effort being made by those assisting Mr. Milosevic not to give you information?” Kay said he did not know. The judge persisted: “Am I to take it you have asked for details and been refused?” “Yes,” Kay responded, “They don’t consider me his lawyer.” Judge Bonomy reminded Kay that he had the right to apply for court orders to overcome obstructions: the court had appointed Milosevic’s associates, and they must comply with court orders or face consequences. Milosevic disagreed. “They are my Associates. They have nothing to do with [the court].” The associates were not taking chances, and during the next court recess they gave Kay contact information for some of Milosevic’s witnesses. Defense counsel advised the court of its difficulty proceeding without any instructions from the accused: “Any reasonable observer would not say it is a fair trial in this context.” Judge Bonomy disagreed: “I cannot accept that at all. When a person is given every reasonable opportunity to present his defence, that when he decided not to exercise it, the trial was not fair.” Kay responded, “It may be said he has every opportunity to take part, but the problem is he is not and will not.” Judge Robinson concluded, “In that case, none can say there was unfairness.” Arguing for a new medical examination, Kay also suggested that if Milosevic preferred to risk his health and life to represent himself, he should be allowed to do so. It was his free choice, he said. Judge Kwon was troubled by such a libertarian view: “Allowing the Accused to continue representing himself is allowing him to kill himself. We should not allow that to happen.” Judge Robinson said that the health of the accused was not the only basis for appointing counsel. It was also necessary to preserve the reputation and integrity of the court, for if the court continued to allow Milosevic to represent himself, knowing that the trial would last at least two more years and be interrupted twelve times as it had thus far, the court would be acting irresponsibly and would bring the tribunal into disrepute. In its written decision the court only cited health as the reason necessitating appointment of counsel. As a result, the appeals chamber focused only on that issue. Yet the court’s authority remained at the heart of the dispute, whether acknowledged or not. And Milosevic? He blamed the court for his worsening health. “You led me into the situation where I find myself seriously impaired,” he charged, noting the court’s requirement that he submit his witness list by 12 April 2004 despite his illness. The court denied defense counsel’s request for a new medical examination, but it adjourned the trial for a month to allow the defense time to develop witnesses on its own. Before adjourning, Judge Bonomy engaged Milosevic I n t e r r e g n u m   335

directly about his role in witnesses’ noncooperation: “Is it also your position that if witnesses can find it in their conscience to attend the Tribunal to give evidence you would wish them to do so?” Milosevic said that was up to the witness: “I wish to say to you once again that not even in the most indirect way do I want to influence witnesses.” Judge Bonomy followed up: “Do you wish to encourage them to come?” Milosevic did not: “They are reasonable people, people of integrity. It is up to those witnesses.” By mid-October Kay had found two witnesses willing to testify: a German journalist embedded with the KLA during 1998 and 1999, who insisted he was not testifying for either side, and a Greek journalist who considered the ICTY a “political instrument of genocide and satanization.” Franz-Josef Hutsch, a journalist and war correspondent who worked for a number of unidentified German media, testified that the KLA provoked Serbian police to attack Kosovar civilians to create a refugee crisis. At the same time, he said that Serb forces launched disproportionate attacks against villages. He confirmed the pattern that other defense witnesses would deny: of snipers firing into a village, followed by loudspeakers ordering villagers to leave, then Serb attacks of “a degree of hardness and escalation.” While Hutsch believed that villagers fled or were driven from villages where he was located by Serb and KLA forces in about equal measure, he acknowledged that his view was limited. He compared his perspective to that of a small frog looking at a huge dung heap. Hutsch testified about the American military contractor MPRI, which he claimed recruited and trained eighty to a hundred Arab officers from the mujahideen brigade that fought in Bosnia to lead KLA commands. The supposed operation began in 1996 as part of NATO preparations for war against Serbia, he asserted. The officers were to act as spotters for NATO air strikes. Hutsch’s claims were contradicted by substantial prosecution evidence that the KLA was a small, ragtag bunch of disaffected individuals, until Serbia’s excessive use of force gave it credibility among Kosovars and precipitated an outpouring of support throughout Kosova and the Albanian disapora. Hutsch also challenged the widely held view that the United States and other NATO nations were reluctant to get involved in Kosova. Hutsch made two important points for the prosecution. The first was that paramilitaries were active in Kosova and worked with the MUP and VJ in military operations. He went so far as to say that police did double duty as paramilitaries in their off hours. Their superiors turned a blind eye. Future defense witnesses, prepared by the accused, insisted that no paramilitaries were allowed to operate in Kosova. Second, Arkan told Hutsch that every336  I n t e r r e g n u m

thing he did was commanded by the VJ and Milosevic. Arkan said he was “dumped” by Milosevic because he knew too much and replaced by Simatovic, who was put in overall command of paramilitaries in Kosova. Hutsch was unable to independently confirm Arkan’s assertions. Hutsch’s gift to the defense was his report on an interview he had with Mladic in which the general insisted that he did not take orders from Milosevic.16 Asked about allegations that Srebrenica could not have been taken without Belgrade’s agreement, Mladic answered, “Don’t you think we Serbs could solve our own problems in Bosnia?” The extreme views of the Greek journalist Liana Kanelli little helped the accused’s case. A vice-president of the International Committee for the Defense of Slobodan Milosevic, Kanelli visited Kosova during the war and reported on twelve civilian casualties from NATO bombing of Aleksinac. The prosecution did not dispute this—except for her contention that Aleksinac contained no military targets. Both the 203rd Mixed Artillery Brigade and the Deligrad Barracks were in Aleksinac. NATO accepted responsibility when one of its bombs missed the target and killed civilians. Asked about her failure to discover the existence of a military target in Aleksinac, Kanelli said she was not a prosecutor who made inquiries: “I’m a reporter. I just go, report on what I see.” After Kanelli’s appearance Kay informed the court that he had withdrawn the next witness on instructions transmitted by the court’s liaison from the accused, instructions that he felt left him no other choice. Judge Robinson approved the withdrawal, preferring to see it as a sign that Milosevic was cooperating with appointed counsel. With no more witnesses to call, the court adjourned. Milosevic Handed a Victory

Having made oral argument to the appeals chamber on behalf of Milosevic’s demand to represent himself, Kay and Higgins asked to withdraw as his counsel: “Continued representation of the Accused by ourselves causes us to be in breach of this Code of Conduct [for Counsel Appearing before the International Tribunal].” They maintained that the code required them to abide by their client’s directions on the objectives of representation. Since the accused refused to communicate with them, the only instruction he gave was that he wanted them off the case and his right of self-representation reinstated. Before the trial chamber heard oral argument on the withdrawal motion, the appeals chamber reached its decision on the issue of self-representation. I n t e r r e g n u m   337

It agreed with the trial chamber that the right of self-representation is not absolute and said that it had been proper to appoint counsel. But the higher court gave Milosevic a victory, ruling that the trial chamber had erred in not imposing the least restrictive regimen in curtailing the right of the Accused to represent himself. The appeals chamber noted that the present state of Milosevic’s health allowed him to conduct a two-day opening statement, while the doctors’ conclusions were three months old. It reversed the trial chamber’s protocol: “At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case—choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense.” Milosevic was back in control. The appeals chamber stressed, “In practice, if all goes well, the trial should continue much as it did when Milosevic was healthy.” However, if his health problems “resurface with sufficient gravity,” the assigned counsel could continue his defense. In effect assigned counsel were relegated to the role of standby counsel. The victory did not change Kay’s and Higgins’s desire to withdraw any more than it assured a fair and expeditious trial conclusion. It did not take a genie to see a future where the two would sit at counsel table with nothing to do but listen to Milosevic’s case presentation for the next year or two, hardly how a queen’s counsel wants to spend the best years of his career. Nor was Kay happy with Milosevic’s disparaging remarks about his representation thus far. As he told the court, “I have not welcomed being called a prosecutor, nor that I haven’t put the case properly when I have not been instructed and am trying to do my best.” A complaint filed against him by a Dutch attorney whom Milosevic had hired also distressed Kay. Judge Bonomy suggested the possibility that Kay was being too sensitive. All attorneys have complaints filed against them. However, when the judge considered that the Dutch Bar Association was purporting to decide who could represent an accused before the ICTY, he got his dander up. “Who’s running this court?,” he demanded. The judge objected to a position allowing “any mischievous complaint” to disrupt a tribunal proceeding. While Kay maintained that he could not ethically continue representing Milosevic without his consent and willingness to communicate, the judges were quick to see that his construction of counsel’s duties would prevent the 338  I n t e r r e g n u m

appeals chamber’s decision from being implemented. The decision upheld appointment of counsel over the objections of the accused, though it relegated counsel to a subsidiary role. If Milosevic could rid himself of counsel by not talking to them, he had veto power over any court decision to appoint counsel. Both Robinson and Bonomy disagreed with Kay’s conception of his ethical obligations and his inability to provide a defense without instructions. The two judges and the prosecutor took the position that a legal defense could be designed with knowledge of the law and the case, including Milosevic’s numerous comments, three opening statements, and cross-examination. Court-appointed attorneys in many cases defend their clients with far less. As Judge Bonomy said, he had recently had the advantage of reading the trial record and found “loads of indications of lines [of defence] that ought to be pursued by any counsel.” Kay’s position might be characterized as a strict constructionist view of an attorney’s role. Is an attorney merely a hired gun who does whatever his client wants, or is he a professional paid for deploying his expertise on the client’s behalf? At the other end of the scale from Kay’s strict constructionism lies the position that an attorney need never consult his or her client. According to a middle view, lawyers whose clients cannot or will not consult with them are still obligated to provide a defense. As Judge Robinson concluded, “The fundamental duty is to insure a fair trial and every provision in those [professional] codes is subject to it.” At the heart of the different interpretations lies the question of whether appointed counsel owes the greatest duty to the person he represents or rather to the court who appoints him. All professional codes, including the tribunal’s, recognize a fundamental duty of loyalty to clients. Codes also recognize that lawyers owe an overarching duty to act in the interests of justice. Sometimes the duties conflict. Article 14 of the ICTY code addresses the issue: “Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organization or State.” The issue of Kay’s and Higgins’s withdrawal was one of the more impassioned ones facing the trial chamber in the Milosevic case. Remarks from those concerned are illustrative. Steven Kay, speaking to the court: “I owe a duty to [Milosevic], not to you.” Milosevic, speaking of a relationship between himself and Kay: “You can’t destroy something that never existed.” Nice, agreeing with the accused: “The order of the court made it absolutely I n t e r r e g n u m   339

plain that assigned counsel were not entering into a relationship of client and lawyer. They were being required to represent him independently of what he might want, provided they did everything they could . . . to obtain instructions from him.” After several days of argument Kay informed the court that he did not need permission to withdraw. He took the position that the ICTY Code of Conduct did not explicitly cover the issue, and that therefore the code from his home jurisdiction (the Bar of England and Wales) prevailed. Under that code, he informed the court, he must withdraw if the client withdraws instructions or impugns his professionalism. Judge Bonomy noted that the provision was not mandatory. Kay could choose to withdraw or not. Kay responded that he was exercising his option to terminate. Judge Robinson expressed his view that the ICTY code does apply, even if it does not speak to the issue of withdrawal explicitly. In such circumstances the court interprets the code according to substantive law. Kay insisted, however, that he had the right to terminate his employment. Robinson asked incredulously whether he could withdraw on whimsical grounds, to which Kay replied that a barrister must stand up to the court at times. He had received advice from his home bar association as well as the ICTY Association of Defence Counsel that he would not violate the ethical code by withdrawing.17 In early December, after Milosevic had called and examined seven witnesses without assistance from Kay and Higgins, the court denied their motion to withdraw. The court held that the refusal by an accused to communicate with or instruct assigned counsel cannot be grounds for withdrawal. If it were, the court could not assign counsel without the cooperation of the accused, and there would be no way to implement the appeals chamber’s order. The chamber found that assigned counsel do not breach any duty of loyalty to their client when acting to represent him despite his lack of cooperation. They are required to “act in what they perceive to be the best interests of the Accused. . . . It is all that can be reasonably expected of counsel in such circumstances.” The court stated: “To hold otherwise would be to allow an accused to frustrate the statutory duty of the Trial Chamber to ensure that a trial is fair.” It concluded, “The Trial Chamber remains of the view that the presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings.” Kay and Higgins were directed to act according to the procedure originally established by the trial chamber as amended by the appeals court: to remain available should the accused change his mind and decide to use their services or, if the accused were to fall ill and be unable to examine witnesses, to assume that task. 340  I n t e r r e g n u m

While the trial chamber’s decision was sound, it did not resolve all problems. Foremost among them was what would happen the first time Milosevic fell ill and could not attend court. Experience suggested that his witnesses would boycott. The court would then have to issue subpoenas, through the good offices of their states of residence, to secure attendance. Eventually the trial chamber would be faced with the very same problem and forced to use its contempt powers. No one knew whether Kay and Higgins would abide by the court’s directive or follow up on their threat to walk out. They were in an unenviable position. Ultimately Kay and Higgins relented and accepted their fate. They acted more like amici until the last months of trial, when Milosevic sought their help in his unsuccessful efforts to get to Moscow.

ICTY law on the right to self-representation was unsettled when the appeals chamber was faced with defining its parameters in the Milosevic case. The governing statute required that “the Trial Chambers shall ensure that a trial is fair and expeditious . . . with full respect for the rights of the accused.”18 It provided minimum guarantees for the accused, including “(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; . . . (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own ­choosing.”19 Two ICTY decisions were relevant: one by another trial chamber (in the Seselj case mentioned above) and one by an appeals chamber. In the Seselj case Judge Schomburg ruled that the right to self-representation is a starting point, but that it is not absolute. It may be limited if the “interests of justice” so require. In appointing standby counsel, the judge noted, “Good cause for concern has been shown following [Seselj’s] declared intention to attempt to use the Tribunal as a vehicle for the furtherance of his political beliefs and aspirations. If this tactic were resorted to, it would not only result in an abuse of the valuable judicial resources of the Tribunal but also hinder an expeditious trial.” Judge Schomburg reached his decision after watching for well over a year the havoc wrought by Milosevic’s self-representation.20 While one trial chamber’s view of the law does not bind another trial chamber, appellate decisions do. In the case of Vidoje Blagojevic the appeals chamber held that the right to a fair and expeditious trial supersedes a defendant’s preference, where the court has found no legitimate reason for the accused to replace counsel.21 Blagojevic maintained that he had lost trust in I n t e r r e g n u m   341

his attorneys and refused to speak with them for a year. The appeals chamber endorsed the trial chamber’s views: “An accused does not have the right to unilaterally destroy the trust between himself and his counsel.” In other words, any apparent unfairness in the lack of communication between Blagojevic and his counsel was the fault of the accused, as counsel had continued trying to communicate with him. Other international tribunals had held similarly.22 The prosecution in Milosevic summed up the state of the law emerging in international criminal tribunals where an accused does not recognize the court’s legitimacy and attempts to hijack the process: “[T]he jurisprudence indicates that where an accused’s request to refuse to accept counsel or to withdraw counsel can be characterized as a refusal to recognize the legitimacy of the court, that request will be denied, but where an accused makes a clear election to defend himself or herself and it is clear that the Accused intends to participate in proceedings, counsel will be appointed to assist the accused and if necessary take over the task from him.”23 The court’s primary responsibility is to assure a fair trial, not to allow an accused to select the kind of proceeding he desires—whether it be a lecture, debate, or theatrical performance. According to developing international case law, an accused is to be provided a fair trial, nothing more and nothing less.24 In a case from the 9th Circuit U.S. Court of Appeals, Judge Reinhardt, in a concurring opinion, explained the underlying interests: “It is . . . not only the defendant, who ‘suffers the consequences’ when a fair trial is denied, but the justice system itself. Put another way, the state has a compelling interest, related to its own political legitimacy, in ensuring both fair procedures and reliable outcomes in criminal trials, both of which objectives may be thwarted when a pro se defendant . . . seeks to offer his ‘more glorious kind of defense.’ ”25 The appeals chamber’s decision was based solely on Milosevic’s health as the reason necessitating counsel. The court did not consider the prosecution’s plea to expand the grounds for imposing counsel to include the accused’s disrespect for the tribunal, his avowed intention of using it for his own, nonforensic purposes, or his manipulation and obstructionism. Emphasis on the integrity of the tribunal might have signaled a different outcome.26 The appeals panel held that the right to represent oneself is guaranteed by the ICTY statute and was viewed by the drafters as “an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent, to confront the witnesses against them, to a speedy trial, and even to 342  I n t e r r e g n u m

demand a court-appointed attorney if they cannot afford one themselves.” It concluded, “Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.” This does not mean that the right is absolute, the panel went on to say, citing with approval the unanimous conclusion of contemporary war crimes tribunals. The right may be qualified, under appropriate circumstances, if self-representation by an accused is “substantially and persistently obstructing the proper and expeditious conduct of his trial.” More than a forensic decision, the appeals chamber’s ruling appeared to be a practical one designed to move the trial forward from the impasse it had reached through Milosevic’s and his witnesses’ blackmail.27 In the end Milosevic’s continuing “self-representation” may have contributed to the heart attack that prematurely ended his life and the trial. One cannot know for certain if the trial would have been completed had counsel taken over, but their participation would have allowed for a full-week trial schedule, while taking a considerable burden from Milosevic. Had he continued his refusal to cooperate with counsel, the trial might have ended sooner. Only the accused could have been faulted if elements of his defense were not aired. No accused is required to mount a defense. That too is a fundamental right. Milosevic intentionally set out to undermine the legitimacy of the ICTY. He did so by refusing to abide by procedural rules, and his refusals sometimes impinged on the trial’s fairness, as when he continually failed to give the prosecution and the court sufficient notice of topics of witness testimony, thus limiting the prosecution’s ability to test the evidence on crossexamination. He used cross-examination to make speeches and interrogate witnesses on irrelevant issues they knew nothing about. By focusing on irrelevant matters during cross-examination, he forced the court to extend his time to allow at least some relevant questioning. He would not or could not learn how to avoid asking his witnesses leading questions, rendering significant testimony worthless as he put the answers into their mouths. During the defense case he brought hundreds of untranslated documents that he sought to introduce, greatly restricting the prosecution’s ability to test or take a position on them. His actions increased the potential for introducing false evidence into the case. Milosevic’s whole approach was based on his attempt to discredit and hijack the process by introducing false testimony and fraudulent documents as well as threatening witnesses. Moreover, Milosevic’s lack of legal skills, defiance of procedural rules, and disrespect for the court placed the court in an adversarial relationship with the accused. It I n t e r r e g n u m   343

lessened the court’s stature as well as adding to the appearance that Milosevic was controlling the trial. An alternative approach providing for more certainty is to adopt a strict rule. Where an accused states that he does not recognize the legitimacy of a tribunal and has no intention of defending himself against charges, yet insists on using the time allotted for the defense to advance a nonforensic agenda, the court should appoint counsel to represent him. Certainly the accused should be given the opportunity to legally challenge the proceedings, but once the tribunal’s legitimacy has been established, the proceedings must go forward. Tribunals can allow defendants to make statements for the record at appropriate times (such as in opening and closing argument), but they should not provide them with the opportunity to derail a legal process, to turn it into a farce, or to control it. The court must take itself and its mission seriously, while protecting the rights of the accused within the system of law and justice.28 The heart of the matter is the authority of a justice system. As Judge Wolfgang Schomburg wrote when assigning standby counsel to Seselj over his objection, the behavior of the accused “jeopardizes the very foundations upon which its proper functioning is based.”29 For the public to have confidence in the tribunal’s ability to deliver justice, the tribunal must first uphold its own authority and integrity.

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T he W o r l d A c c o r d i n g t o M i l o s e v i c Chapter 13

Milosevic Resumes First Chair

On 16 November 2004 Milosevic took over examining his witnesses, who now willingly appeared in court. Since it was the first time Milosevic would question his own witnesses, Judge Robinson took the opportunity to explain the function of direct examination and the manner in which it should be conducted: “Examination in chief is not necessarily easier than cross-examination. It is different. You are not allowed to ask leading questions.1 The witness must give the evidence. You are not to give evidence and you are not to make speeches. The evidence must be relevant, that is, relating to an allegation in the indictment.” Whether from lack of experience or intent, Milosevic rarely bothered to follow the judge’s instructions. Among the first witnesses Milosevic called were Serb intellectuals involved in writing the draft memorandum of the Serbian Academy of Arts and Sciences (SANU), which inflamed the sense of Serb victimhood when it came to light in the mid-1980s. According to the Balkan scholar Louis Sell, “The SANU Memorandum constituted the intellectual underpinning for Serbia’s destruction of Yugoslavia.”2 Mihajlo Markovic and Kosta Mihajlovic, SANU members who testified for Milosevic, characterized the memorandum as a response to Serbia’s inferior status under the Yugoslav constitution of 1974 and the country’s economic decline. They denied that it had any inflammatory effect or was a nationalist program for a Greater Serbia. Milosevic, they testified, did not use it as his path to power. His promotion of the views in the memorandum was merely coincidence. The document argued that Serbia was unequal among the Yugoslav republics, and that Serbs, unlike other nations within the federa-

A Recap of Charges and Defenses Had Milosevic been interested, the case he had to answer, as charged and presented by the prosecution and upheld by the court in denying the motion to acquit, was that he planned, participated in, or had command responsibility for a campaign of terror and violence to forcibly expel the ethnic Albanian population from Kosova. His opening statement, discussed in chapter 12, demonstrated that he would mount a political and not a legal defense. He focused his witnesses and evidence on trying to establish that nato was responsible for the attack on Serbia and the destruction it caused. Hidden within his political case, however, were potential legal defenses to the indictment, if he could support them with evidence, including: (1) nato caused the deaths and destruction for which Milosevic was charged. (2) Albanians voluntarily fled Kosova for fear of nato bombing or under kla orders. To the extent that Serbia was involved in the movement of people, it was to assure their safety. (3) Measures were taken to prevent Serbian forces from committing war crimes or other violence. Any crimes perpetrated by Serbs were done by individuals, and efforts were made to punish them. (4) Serbia’s military and police action in Kosova was a legitimate response to “terrorism.” The prosecution did not contest that nato bombing destroyed some civilian facilities and killed some civilians (though they did not concede that it did so intentionally), an issue not relevant to the charges against Milosevic. The accused nevertheless showed video footage of bomb damage, including refugees killed while fleeing Kosova in long columns. Admonishing Milosevic to restrict nato -related

evidence, Judge Robinson warned, “The nato bombing is not in and of itself a part of

the case. nato is not charged.”

tion, lacked one state which would include all Serbs (Serbs lived in Bosnia, Croatia, and Serbia). The Yugoslav constitution of 1974 gave Kosova and Vojvodina autonomous status in Serbia, with their own assemblies, judiciary, and police. As a result, according to the memorandum, Serbia’s laws were not applicable in the provinces, and Serbia’s police could not protect Serb citizens within Kosova and Vojvodina. In addition, the provinces each had a representative and a vote in the federal presidency equal to those of the republics. According to the memorandum, Tito and the Communist Party intentionally constructed Yugoslavia in this manner to keep Serbia weak. The prosecutor confronted Mihajlo Markovic with a passage in the document alleging that genocide was being carried out against the Serbs in Croatia and Kosova: “The physical, political, legal and cultural genocide of the Serbian population in Kosovo and Metohija is a worse historical defeat than any experienced in the liberation wars waged by Serbia from the First Serbian Uprising in 1804 to the uprising of 1941.” Markovic conceded that “genocide” was too strong a word, but insisted that it was otherwise an accu346  T he W o r l d A c c o r d i n g t o M i l o s e v i c

rate description of the situation in Kosova, where Serbs were being expelled and their cultural monuments destroyed. Markovic agreed that the language was bound to have a negative effect on other nationalities, but added “[It] expressed the factual situation.” Nice continued: “As an intellectual, are you aware that if you create a culture where one segment is categorized as an outsider it is going to be easier to commit crimes against outsiders?” Irritated, the witness answered, “No. Don’t you hold lectures here. [Kosova Albanians] weren’t outsiders. They had more rights than minorities in other countries. They wanted to conjoin Kosovo with Albania.” In the worldview that Markovic described, Kosova Albanians were not entitled to the same rights as other ethnic groups in the former Yugoslavia who did not have a separate “mother country” like Albania. Their mother country should look after their rights just as Serbia intended to look after the rights of Serbs outside Serbia, he implied. Of course if Albania had attempted to “protect” Albanians in Kosova, Serbia and Yugoslavia would not have countenanced its efforts. Both Markovic and Mihajlovic admitted that President Ivan Stambolic, Milosevic’s former mentor, objected vehemently to the memorandum, calling it Yugoslavia’s “In Memoriam.” According to the prosecution’s history expert, Dr. Audrey Budding, the draft memorandum reflected a fundamental shift in Serbian national thought. Formerly, Serb nationalists favored the preservation (and reform) of Yugoslavia as a state providing a single homeland to all Serbs. In the memorandum, for the first time there were hints that “the Yugoslav state might be expendable.” The document formed the basis of the Serb nationalist program that Milosevic later adopted, despite his insistence that he sought to preserve Yugoslavia. The emerging Serb worldview equated the demise of Yugoslavia with a need to protect and unite the Serbs. As Dr. Budding concluded, “The most important point about the Memorandum was its one-sided emphasis on Serb victimization.” According to the prosecution’s evidence, in March 1989 Milosevic used violence and manipulation to achieve Serbian constitutional changes revoking Kosova’s and Vojvodina’s autonomous status in violation of the federal constitution, thereby implementing a significant part of the program advanced by the memorandum and strengthening Serbia’s position among the republics. Markovic insisted that autonomy was not revoked; only elements of sovereignty were eliminated to give Serbia a status equal to that of the other Yugoslav republics. The distinction was a clear demonstration of the divide between Serb nationalists and others that fueled resentment and ultimately war. T he W o r l d A c c o r d i n g t o M i l o s e v i c   347

Vukasin Jokanovic’s testimony further illustrated the divide between Serbs and Albanians. Over decades the two peoples formed distinctly different views of history and current events. Power in the province shifted back and forth, with each side nursing grievances against the other. It was this volatile situation that Milosevic exploited in his drive for power, leading to the commission of crimes against humanity and war crimes. Jokanovic was a Kosovo Serb with a long history in politics. He was president of the Kosova Assembly when it adopted the controversial amendments to Serbia’s constitution in 1989. He gave an overview of Kosova history from the Serb point of view. Serbs claimed Kosova as the spiritual heartland of the ancient Serb Empire and considered the Albanians usurpers who gradually forced Serbs out through threat, violence, and a higher birth rate. Since Kosova was placed in the Yugoslav Kingdom by the Great Powers after the First World War, Albanians living there have sought to secede and join Albania proper, according to this view. Jokanovic maintained that this secessionist movement was a constant in Kosova Albanian politics. Through this screen he viewed the Kosova Albanian demonstrations of 1968 which, though brutally repressed, contributed to the hated Yugoslav constitution of 1974. “It practically denied Serbia all rights in Kosovo,” Jokanovic testified. As a result of granting the two provinces autonomy, when further Kosova Albanian demonstrations occurred in 1981 Serbia could not send in its security forces to restore order, the witness testified. (In fact the JNA and federal police used force to suppress the demonstrations.)3 It could only enter the province as part of a joint force including police from the other republics. Yet, Jokanovic complained, Kosova citizens through their Assembly could veto acts that the Serbian Assembly wished to pass. After the demonstrations of 1968, followed by the Yugoslav constitutional amendments in 1974, “non-Albanians in Kosovo had a feeling of uncertainty,” according to the witness. Over the next two decades they were gradually pressured to move out of the province, Jokanovic testified. Milosevic suggested that Serbia had the duty to protect non-Albanians in Kosova against the pressure and violence directed against them, but lacked the constitutional authority to do so. Judge Bonomy pointed out that the witness had not said anything about violence. The events of the period gave rise to efforts to redraft the Serbian constitution beginning in 1986 and culminating with its adoption in 1989, according to Jokanovic. The most controversial amendment was no. 47, requiring the Serbian Assembly to seek the “opinion” of the provincial assemblies before changing the Serbian constitution. Formerly their “consent” had been necessary. While opponents objected that 348  T he W o r l d A c c o r d i n g t o M i l o s e v i c

the public had not adequately discussed the provision, Jokanovic disagreed. The changes also granted Serbia control over police, security services, and other aspects of Kosova autonomy. Milosevic called the indictment a lie for claiming that the Kosova Assembly did not pass the amendments by the required two-thirds majority and that most Albanian members refrained from voting. According to Jokanovic, 187 members of the 190 in the Assembly had been present; ten voted against the amendments, two abstained, and the rest voted in favor. The amendments were adopted to applause and a standing ovation, he said. Milosevic showed a short video clip supporting the testimony and provided a transcript of the proceedings. Nice advised the court that the transcript was missing pages and that he would seek to bring a rebuttal witness to testify on the issue. Prosecution witnesses earlier testified that members of the Assembly were pressured into voting for the constitutional changes, and that military tanks surrounded the Assembly building as further intimidation during the vote. The prosecution asserted that non-Assembly members voted in the show of hands, all of which was categorically denied by Jokanovic, who suggested that the prosecution had been manipulated by Albanian separatists. Nice established that emergency measures had been imposed in Kosova in February 1989, the month before the vote, as a result of which a curfew was imposed, strikes were prohibited, and federal troops were brought in. According to the witness, there was overwhelming support for the constitutional changes. Only “Albanian separatists” were opposed. Milosevic produced a file of newspapers from the period, including an Albanian-language paper, that he claimed reflected “an atmosphere of complete consensus.” Nice asked the witness about a challenge to the amendments, filed with the Kosova Constitutional Court. Again Jokanovic was dismissive, asserting that the challenge had been filed by Albanian separatists. According to Nice the Constitutional Court annulled the vote, but Serbian authorities dissolved the court before its decision could be implemented. Jokanovic similarly dismissed the massive demonstrations and miners’ strike following the vote as inconsequential because those involved were separatists. In Jokanovic’s view all opposition was separatist and therefore irrelevant. It was not difficult to see why differences between Serbs and Albanians persisted. Nice put significant parts of the prosecution’s case to the witness, who would not budge from his view of events. Jokanovic challenged Nice over the power he ascribed to Milosevic, power that he insisted Milosevic just did not have. Judge Kwon asked if the accused did not exercise considerable power T he W o r l d A c c o r d i n g t o M i l o s e v i c   349

as president of the Serbian League of Communists. Jokanovic said that the president of every party has influence over its members. “He can propound his position, but he is not the only decision-maker. Proposals also come from the grassroots and other fora. Please. Don’t believe Slobodan Milosevic held a magic wand and that he appointed and replaced [officials]. He had no such power. It is true he had authority. He was held in great esteem.” Nice persisted, “The process of reform and the [SANU] Memorandum provided opportunities the accused took, in each case adopting, however silently, the position of the Memorandum and the process of reform to establish his power base.” Jokanovic continued to disagree. With the unshakable faith of a zealot, Jokanovic presented Milosevic’s case well. Except for continuing problems with untranslated documents served at the last minute, if at all, Milosevic also showed himself capable of making a proper defense. Unfortunately he did so rarely, as doing so did not serve his purpose of presenting a political case to the public.

Milosevic called two other witnesses from SANU as history experts, Slavenko Terzic and Cedomir Popov. Nice challenged both for bias as Serb apologists, not independent experts. The court allowed them to proceed, relying on the prosecution to expose any bias in cross-examination. It was not difficult. Popov, a retired history professor at Novi Sad University, characterized Serbia as a martyr nation that fought the great powers (whoever they were at the time—from the Ottoman and Austro-Hungarian empires to the Nazis and Fascists of the Second World War and, most recently, NATO and the West) to gain freedom and independence for all South Slavs. Greater Serbia, according to Popov, was a myth advanced by the Great Powers to conceal their aspirations for conquest. Popov claimed that Serbs were subjected to “genocidal actions” beginning in 1914. Nice asked if Popov was saying that “Serbia has been a victim nation and state for hundreds of years,” rather than pursuing a hegemonic agenda. “That is right,” the professor answered. Judge Robinson asked: “You say unification of Serb lands around Serbia was not Greater Serbia. What do you describe it as?” Popov: “Serbia.” Nice followed up: “Unifying Serbs around Serbia with Serbia makes for a Serbia that is a bit bigger?” he queried, eliciting the professor’s agreement: “Yes. Somewhat. Yes.” Terzic, director of the SANU Historical Institute, asserted that Albanians were late on the scene and bent on destroying the Serbs and seizing their land—through a high birth rate and expulsion of Serbs from Kosova by ter350  T he W o r l d A c c o r d i n g t o M i l o s e v i c

ror, violence, and crimes. They wanted to append Kosova to Albania, creating a “Greater Albania,” Milosevic’s witness asserted, though he provided little to support his opinion. While some Kosovars did want to join Kosova to Albania, the desire was not widespread, in part because they had little to gain since Albania was the poorest and most repressive country in Europe at the time. Terzic characterized Albanians as drug traffickers, terrorists, and white slavers. In the long history of Serbs and Albanians living together, he found no instances where Albanians had been victims and Serbs aggressors. Terzic’s narrow, simplistic worldview, dominated by heroic Serb victims and Albanian criminals, was one that not even Milosevic so consistently portrayed. His obvious bias prompted Nice to ask, “Your report, does it contain a single remark favorable to . . . Kosovo Albanians?” When pressed for an example, Terzic lamely noted the acknowledgment in his report that Albanians had their own newspapers and university, to which Nice retorted, “Are you saying they are literate and read?” Struggling, Terzic remarked that he had had an Albanian roommate at university. Nice asked Terzic if he knew the difference between giving evidence and arguing a cause. The witness admitted that he did not. The court reminded Milosevic that only a brief outline of relevant historical matters was needed to provide a context for the charges. Beyond that the history was not relevant. The court’s remit did not include deciding which version of history was correct. Milosevic’s history “experts” either had not considered expert views differing from their own or dismissed them out of hand. While ordinary witnesses might be forgiven such bias (though it might diminish their credibility), its predominance among academics did not serve Milosevic well. To be credible an expert must not only be knowledgeable but also objective. Milosevic would have done better to look farther afield than the hallowed halls of the Serbian Academy of Arts and Sciences. Who Caused the War?

Milosevic brought Ratko Markovic to the stand, a former judge on Yugoslavia’s Constitutional Court. Though not qualified as an expert, Markovic gave his opinion that the secession of Slovenia, Croatia, and Bosnia, rather than any plan of Milosevic, had led to war. The secession of the three republics, he testified, was unconstitutional, requiring the JNA to quell the “rebellions.” When Judge Robinson questioned the relevance of Markovic’s testimony, Milosevic defended it as countering the prosecution’s charge that the conT he W o r l d A c c o r d i n g t o M i l o s e v i c   351

flicts were initiated by a joint criminal enterprise of which Milosevic was a part. Nice responded that the purported illegality of secession did not justify war crimes. To Milosevic, however, it was the core of his defense that Serbia and he as its president had nothing to do with the wars in Croatia and Bosnia. If the three republics’ secession caused Yugoslavia’s breakup and war, Milosevic argued, he was not the guilty party. Yet the question of who started the war was irrelevant, because Milosevic had not been accused of starting an aggressive war. The UN Security Council had not given the tribunal the authority to prosecute aggression. Nice homed in on Milosevic’s legal manipulations to consolidate power by changing the Serbian (1990) and Yugoslav (1992) constitutions. Markovic drafted the new constitutions, earning him Milosevic’s praise as “without doubt the best constitutional expert on the territory of the former Yugoslavia.” He was involved in drafting the amendments abolishing Kosova’s autonomy. In court he attempted to minimize their effect, claiming that they merely removed Kosova’s veto power over Serbia’s actions. In fact they provided mechanisms for Serbia to take over provincial institutions, which it did, eliminating Kosova’s constitutional court (and abolishing its constitution), assembly, and Academy of Arts and Sciences, and taking control of the police, radio station, educational administration, and other institutions. Nice read from the preface of the constitution that Markovic had drafted: “The constitution of the Republic of Serbia enacted in 1990 has established in its constitutional norms a new society and a new state. . . . The new constitution of Serbia has transformed the entire anatomy and physiognomy of the constitutional order of the Republic of Serbia without shedding a drop of blood.” Markovic was hoist on his own petard. Exposing Serbia’s true intent, the new constitution bestowed on Serbia, still a republic of Yugoslavia, powers of state sovereignty, including the ability to conduct affairs with other states, defend its territorial integrity, and overrule federal acts violating its equality with other republics or threatening its interests. It allowed Serbia to maintain relations with Serbs outside Serbia. The document also empowered Serbia’s president to command armed forces in times of peace and war, though Serbia, as a republic, had no armed forces at the time. All this amounted to a huge usurpation of federal power. Markovic denied that the constitution had any such effect. Nice presented an article written by prominent Serb intellectuals, including Judge Slobodan Vucetic, president of Serbia’s constitutional court, and Kosta Cavoski, a founder of the Democratic Party of Serbia, critiquing the constitutions that the witness had helped to draft: 352  T he W o r l d A c c o r d i n g t o M i l o s e v i c

What does make Serbia different from the other post-communist countries of Central and Eastern Europe is that the President relies heavily on one political party and on this basis the principle of party leadership is directly transformed into the principle of state leadership. This establishes a firm ruling amalgam between the Parliament, the Government, and the head of state, who in reality most often act outside the constitution. This amalgam of power existed before the constitution was adopted in the form of an all-powerful party, and its leader [Milosevic], that adopted a constitution tailored to its own needs and simply moved itself into the new institutions. It continues to function even now, when the strong party chief is no longer President of Serbia, but President of Yugoslavia. (emphasis added) Markovic insisted that the changes were no different from those that happen anywhere when a political party chief becomes president of the state. The article went on to say in the constitution of 1990 Serbia retained powers legally belonging to the federal state, at that time the Soviet Federal Republic of Yugoslavia, or SFRY. “From 1992 to 1997 [after the SFRY had collapsed and been replaced by Milosevic’s fictional entity, the FRY] the president of Serbia [Milosevic] in fact conducted Yugoslavia’s foreign policy, which should be conducted by the federal government. The same person continues to conduct foreign policy following his election as president of the federal state, although this is equally unconstitutional.” Markovic insisted that the FRY government ran foreign policy, while acknowledging that representatives of the international community dealt with Milosevic, not the FRY president. Nice concluded by pointing to the article’s assertion that the new constitution was a smokescreen for unlimited power. Markovic’s feeble response was that he was not a member of the federal parliament after 1996 and was deputy prime minister of the Serbian government, not the federal government to which the article referred. Nice also challenged Markovic’s testimony that Milosevic had no territorial interests and was only interested in preserving Yugoslavia. He highlighted an article from 1992 in which Markovic outlined aspirations for an enlarged Serbia. By 1992, Nice pointed out, “[T]hat’s all history [preserving Yugoslavia]. Secessions have happened and international recognition has taken place, and the problem is what’s going to happen to the Serbs with their proclaimed but unrecognised states in Croatia and in Bosnia? And my suggestion to you . . . is that writing this in 1992 is the clearest reflection of the accused’s and the other political leadership’s intention to create a new T he W o r l d A c c o r d i n g t o M i l o s e v i c   353

state for all Serbs by carving out from and then attaching to Serbia parts of Croatia and Bosnia. Correct or incorrect?” Markovic responded that these ideas were his own, not those of Milosevic, and that in any event no new state was created; a truncated Yugoslavia, consisting of Serbia and Montenegro, continued after the secession of the other four republics. In response to another question Markovic asserted that Croatia and Bosnia took Serbs out of Yugoslavia against their will when they seceded. While he wrote in 1992 that after centuries political forces gained power and were able to establish Serbian statehood throughout the Serb republic, as well as in other republics of Yugoslavia, in court he tried to characterize Serbia’s efforts as solely directed at asserting control over Kosova and Vojvodina. His explanation defied the plain meaning of his written words. When he referred to the aspiration for a Greater Serbia in his article, it encompassed Serbia’s desire to reassert control over its internal autonomous provinces, he said. In his article Markovic maintained that once Yugoslavia dissolved, so did the internal borders of the republics. It did not mean that there was any intention to redraw borders, he explained to the court, since the republic borders were merely provisional. He was referring to the Serbian argument that ethnic groups, not republics, had the right of secession under Yugoslavia’s constitution. The borders, he claimed, were arbitrarily drawn by the Communist Party when it ruled Yugoslavia. Markovic’s article belied his claim that Serbia was only concerned about the autonomous provinces within its borders: “That federal state [Serbia and Montenegro] is a core around which the Serbian countries would gather and it would serve as a base for by-stages unification of the Serbian countries and the Serbian people. We are primarily talking about the areas where the Serbian people is in majority in Croatia and Bosnia, and partly in Macedonia too.” The witness maintained that these were only his opinions and had nothing to do with Milosevic’s program. Yet they were reflected in the FRY constitution of 1992 that he helped to draft. Scripting the Defense

In the early days of his defense case Milosevic called prominent officials from the Soviet Union’s old guard, whose worldview was formed during the fiftyyear cold war between the USSR and the United States. There was nothing surprising about their support for Milosevic, whom they saw as a victim of NATO and American aggression directed at establishing military bases on Yugoslav soil (likely to be aimed at Russia). Milosevic offered their testimony that NATO bombing caused Kosova Albanians to flee their homeland in mas354  T he W o r l d A c c o r d i n g t o M i l o s e v i c

sive numbers, to counter prosecution evidence that he and other members of the joint criminal enterprise forcibly expelled Albanians from Kosova. More than a defense, it was part of his “case” against NATO and the West. Milosevic’s Russian witnesses were Nikolai Ryzhkov, former member of the Duma; General Leonid Gregorovich Ivashov who caused an international incident at the end of the Kosova war by taking control of Pristina Airport; and Yevgeny Primakov, former Russian prime minister, foreign minister, and chief of foreign intelligence. Rather than provide evidence in support of Milosevic’s legal defense, they provided rhetoric in support of his political posturing. A Duma resolution of 17 June 1999 condemned Javier Solana, NATO secretary general, for supporting and encouraging genocide by organizing aggression against the FRY.4 It did not explain the basis of the genocide allegation. On 28 June 2002 Ryzhkov wrote to the SPS, “The Court against Slobodan Milosevic is a continuation of NATO aggression against Yugoslavia. We in Russia reject the illegal Hague Tribunal and demand it cease its activities.” Ryzhkov testified that he viewed Albanian “terrorism” as resembling and inspiring Chechyan “terrorism” in Russia, revealing that his position was based on more than brotherly concern for fellow Slavs. Ivashov was a hardliner, reflecting a split among Russian politicians, with President Boris Yeltsin representing a more moderate view. Yeltsin pressured Milosevic to “refrain from taking any repressive measures against peaceful populations” and to pursue a political resolution for Kosova.5 While the Contact Group, which included Russia, warned Milosevic against using excessive force in reaction to “terrorists,” demonstrators, and civilians in general, the Russian military pressed the FRY to increase military action against the KLA. Primakov, the best-known of the Russian witnesses, was Russia’s prime minister from 1998 until Yeltsin fired him in 1999. He testified to having asked Milosevic point blank if he nurtured plans for a Greater Serbia, which Milosevic emphatically denied. The prosecution confronted Primakov with a contrary statement in a book that he wrote (Years in Big Politics), in which he recounted the conversation differently: by this account Primakov told Milosevic that conditions made a Greater Serbia utterly unachievable, and Milosevic merely agreed. Nice also challenged Primakov’s testimony by reading from minutes of the Council for Harmonization for the day after the conversation between the two men (9 January 1993): “There has to be integrity of the Serbian people. We de facto have that because objectively and according to all our relations, such as political, military, economic, cultural and education, we have that integrity. The question is how to get recognition of that T he W o r l d A c c o r d i n g t o M i l o s e v i c   355

unity now. . . . How to turn the situation that de facto exists . . . into being de facto and de jure whether it takes six months or a year.” The speaker was Milosevic. On Kosova, Primakov testified that the Contact Group indisputably gave the FRY an ultimatum to accept international military force in the province or face NATO bombing. Milosevic, wanting more, asked whether Belgrade did anything to provoke air strikes. Primakov answered judiciously, “Certain excesses could support the argument that a vicious circle of violence was not interrupted. At the same time, according to our information and my conversations with you, I observed you personally and Belgrade trying to rein in the forces that could be drawn into the circle of violence.” Milosevic gained little for his legal defense from his Russian witnesses. For the most part they spoke on political subjects, failed to address charges in the indictment, and provided no support for their pronouncements, leading the judges to lecture the accused on the proper management of his case.

Not all Milosevic’s witnesses testified that NATO bombing precipitated the massive movement of more than a million Kosovars throughout the province and across Kosova’s borders into Macedonia and Albania. More than a few claimed that the Kosovars (and the foreign media) stage-managed the exodus and their injuries to look as if they had been forcibly expelled. The repetitive testimony on this point had the aura of being scripted. Mitar Balevic, an SPS member from Kosova, testified: “The columns of Albanians that I came across in Pristina, for instance, were such that they did not look to me as if they were refugee columns at all because they were going by slowly past the railway station, the bus station, carrying small bags. They didn’t look the way that Serb columns looked. So these columns to me appeared to be sort of construed, manufactured columns, staged columns to look like refugees.” Apparently he never viewed footage of the mass expulsions of Jews from their communities during the Second World War. Two members of the Macedonian Emergency Medical Team, Mirko Babik, a technician, and Goran Stojcik, a driver, accused CNN of orchestrating scenes of suffering to provide a sensational view for the camera. Stojcik claimed that journalists from CNN threw a child into the mud to make him cry, as TV crews rushed to tape the scene. He and Babik also described an alleged incident where young men borrowed a stretcher, on which they placed a crumpled, agonized young man. After he was videotaped he got up from the stretcher, showing that he was uninjured, they said. Babik accused the 356  T he W o r l d A c c o r d i n g t o M i l o s e v i c

BBC as well as CNN of manufacturing news. When pressed by the prosecution for names of journalists who were present, Stojcik flailed, then asserted that Christiane Amanpour, CNN’s star reporter, was on site during the stage managing. The prosecution’s cross-examination was impaired because Milosevic failed to give advance notice of expected witness testimony on the media’s alleged staging of events, as required by ICTY rule. It was a recurring problem that significantly impeded the prosecution’s ability to test defense evidence. Judge Robinson was not sympathetic. When Nice raised the problem on one occasion, the presiding judge said he did not want to hear any more about it. In his view the accused had more rights and the prosecutor more burdens. While true, the rule requiring advance notice of witness testimony applies to both parties.6 If the court seeks to know the truth, it is not aided by impeding the prosecutor’s ability to challenge evidence put forward by the accused. Though Nice argued that the allegation of sensationalizing the news did not undermine the testimony of his witnesses, Judges Robinson and Bonomy suggested that he provide rebuttal evidence on the purported manipulation of news by CNN and the BBC. He never got the chance. Milosevic’s witnesses testified that Kosovar refugees displayed no signs of injury consistent with being beaten and forcibly expelled. Dr. Dobre Aleksovski, director of the Skopje Emergency Medical Service, testified that only fourteen of the people whom they saw crossing the border had any type of injury. Only one was a gunshot wound, and it was an old one. The two other EMT members echoed Aleksovski’s testimony. Defense witnesses who had dealt with refugees claimed that the refugees initially said they were fleeing NATO bombs but later changed their stories, asserting that Serb forces had violently expelled them. Dr. Vukasin Andric, Kosova secretary of health, was willing to agree that some people forced some refugees to leave their homes, but they were criminals, not police. The witnesses could not provide names of those they had spoken with, and Milosevic did not produce them to testify. His reliance on hearsay, while allowable under ICTY rules, did little to discredit the prosecution’s firsthand evidence. One of Milosevic’s strategies was to accuse others of tactics that he himself used. Staging or manufacturing evidence was one. Mitar Balevic’s testimony provided several clues. When Balevic asserted that there would be other witnesses who would testify about Serbian condemnation of crimes against Albanians, Judge Bonomy confronted him: “So you obviously have knowledge about the preparation of the case and the evidence that is to come T he W o r l d A c c o r d i n g t o M i l o s e v i c   357

later in the case; is that right?” Balevic insisted that he had no prior knowledge; it was only his assumption. Shortly afterward Judge Bonomy disclosed that Balevic had been reading his evidence during direct examination. While Nice suggested that Balevic was speaking from a prepared script, the judge said that this was allowable to a certain extent, but that Milosevic should have advised the court. Other evidence that Milosevic and his team were writing the scripts for his witnesses arose during the testimony of the German army member Dietmar Hartwig, manager of the European Community Monitoring Mission (ECMM) in Pristina from November 1998 to 19 March 1999. Hartwig produced an aide-mémoire that he claimed was written after he returned to Germany and before the end of June 1999, based on official documentation and reports from his teams. He did not bring the original documentation with him, claiming that some of it had been destroyed when he evacuated. The report, written in English (not Hartwig’s first language), read like a response to a series of questions. He explained that he wrote in English because he wanted to practice the language and insisted that he was not answering prepared questions but rather “disputing with a shadow” to develop his ideas. Taken together with other indications that Milosevic and his team were creating evidence to fit their case, Hartwig’s denials were less than credible. Milosevic produced a number of videotapes through Vukasin Andric, most recorded as the doctor interviewed Kosova citizens during the war. Using significant prompting, he and other interviewers sought agreement from Kosovars that they were fleeing NATO bombing. When an interviewer confronted Rexhep Fusa, an Albanian lawyer, with the statement that all the displacement and accompanying troubles were caused by NATO bombs, Fusa replied, “Yes. Certainly.” When asked if he was frightened of the bombing, he said, “Sure. Everyone was frightened of bombing. Albanians, Serbs, Macedonians and Americans.” Nice elicited evidence from Andric that the government health service required him to make twenty hours of videotape and that he was not the one who edited the version shown in court. The judges allowed Nice to play a recent video in which Fusa says of Andric’s recording, “I saw that tape only two months afterwards and the title of it was ‘Albanians are leaving because of NATO bombardment’ but that’s not how it was. The truth was that we all left because we came under attack from the paramilitaries and the Yugoslav army.” Fusa explained that when he made the statement cited by Andric he had been surrounded by paramilitaries with automatic rifles at his back. An-

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dric countered that Fusa needed to justify himself to his own people and was “saving his skin” by recanting his earlier statement. Because Andric did not agree with Fusa’s statements in Nice’s video, the court refused to admit them into evidence, leaving Nice to apply to use the tape in rebuttal. There was no guarantee that the court would want to hear them so late in the trial. The prosecutor noted that a number of people who spoke on Andric’s videotape were not identified. The doctor did not think this was important. He admitted having made no attempt to locate or identify the people before his testimony. It was easy enough for the prosecution to do, he stated, which of course it was not. Since the prosecution could not identify those who spoke on the videotape, they could not verify the authenticity of their statements and determine whether they had been given under duress. Still, those whom they could identify and contact stated categorically that they did not flee because of NATO air strikes. On one defense video the voiceover describes a visit by a Canadian parliamentarian, Svend Robinson, who was opposed to the NATO bombing campaign. He was said to have visited the site of a bridge near Luzani where fifty people were killed by NATO bombing, as well as visiting two families who lost members to “NATO aggression.” Robinson saw unexploded cluster bombs in an entirely civilian area, according to the speaker. Andric testified that when Robinson asked to see civilian victims of Serb police and VJ aggression, Andric told him he was free to visit all clinics at a hospital center, but he would find no such victims. They simply did not exist. Nice produced a statement from Robinson, directly contradicting Andric’s testimony: “Driving into Kosovo . . . from Belgrade and then from Pristina to the Macedonian border was a terrible experience. Village after village was totally empty of any life, with houses burned and roofs destroyed. They were like ghost towns. While the Serb officials blamed this all on the KLA or NATO bombing, it was clear that many of the villages had been ‘ethnically cleansed’ of Kosovar Albanians who had fled to neighbouring countries or into the mountains.” Confronted with the statement, Andric nevertheless insisted that Robinson had been surprised at how little damage had been done to houses in Kosova when he visited during the war. By showing videotapes rather than calling those who appeared in them as witnesses, Milosevic made it impossible for the prosecution to cross-examine, leaving them to attempt to contact those on the tape, secure statements, and present the statements to Milosevic’s witnesses, who would merely deny them. While these statements challenged the credibility of Milosevic’s wit-

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nesses, they were not admitted as evidence since they were not authenticated. By permitting Milosevic to use videotaped “testimony,” the court was unfair with the prosecution and allowed Milosevic to manipulate the truth.

A blatant example of fabricated evidence was produced by Barry Lituchy, a history professor at a community college in the United States who had focused on the Balkans for fifteen years, co-founding the Jasenovac Research Institute. In 1999, after the Kosova war, he conducted interviews in Belgrade with Albanians who allegedly claimed that the KLA had forced Albanian civilians from their homes and killed co-nationals who refused to join. In court Lituchy showed a videotape of selected parts of the interviews, providing a written transcript as well. But as Judge Kwon pointed out, “[T]he Chamber was informed by the interpreters there are substantial, not small, discrepancies between what the Albanian witnesses said and the transcript.” In one example, the transcript has the interviewee saying that members of the KLA attacked him, forced him to leave his home, and took it over. In fact the man does not mention the KLA. Judge Robinson noted, “that would be a very serious misrepresentation if that is so.” In the transcript of another segment, a woman says, “The children awake at night calling ‘mama, mama.’ I have nothing to give them. They are afraid of aeroplanes.” On the video she does not refer to airplanes, which if mentioned would have been suggestive of NATO. Nice went through a number of similar examples. Lituchy acknowledged that the interpreter he used (suggested by colleagues in Belgrade) wrongly interpreted some of the interviews. Despite significant discrepancies, he insisted that his contradictory statements were both true: “The translations were accurate and fair representations of what people were saying and also that she interposed things that she had no right and no business interposing, and it was very annoying to me.” Still, he made no effort to correct the translator’s errors before presenting the videotapes to the court. Neither Lituchy nor Milosevic made any attempt to contact those Lituchy had interviewed, though firsthand testimony would have been far more valuable. In common law forums, the secondhand evidence would likely have been excluded without a showing of the witness’s unavailability. But the tribunal drew from both common law and civil law systems. Those who had drafted its rules chose not to exclude hearsay, but to allow judges to weigh the evidence to determine its value, taking into account its weaknesses, as long as the evidence was relevant and probative of an issue. Given the doctored

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version of these statements, it was understandable that Milosevic did not want the interviewees to testify in a forum where they could be questioned by the prosecutor. To counter the evidence the prosecutor sent his investigator to find the witnesses. In the short time available the investigator was only able to talk with one. In the prosecutor’s videotaped interview, played in court, the man made plain that he felt coerced during his original interview with Lituchy. He reported knowing at the time that the interviews were being conducted with approval of the authorities in Belgrade, “probably for propaganda purposes.” Further, “I have responded to all questions in the manner that would have been expected from me by the Belgrade authorities.” During the interview the witness was aware that plainclothes and uniformed police from the Serbian Interior Ministry were present in the Hotel Prague where the interviews were conducted, though Lituchy said he did not know of their presence. With a reference to his family, the interviewee explained why he felt coerced and unable to say anything against the Serbian government or in support of NATO, though his reasons were not revealed in court.7 In addition to the doctored transcript, Nice’s examination revealed Lituchy’s considerable pro-Serb bias and the strident polemics he had used to promote and defend the Serb cause. They could only have hurt it. Nice quoted one article he wrote: “It has fully exposed the dark, criminal nature of William Jefferson Clinton—a rapist, a murderer, a gangster and a fascist— and his entire government. But we should not compare Clinton to Hitler; it does not do justice to the full range of Clinton’s social pathology. He’s best compared to a Ted Bundy or a John Wayne Gacey.”8 Incredulous, the prosecutor asked if he was really saying Clinton was worse than Hitler. Without hesitation Lituchy responded, “I don’t believe that Hitler was guilty of sexual crimes.” Nice showed that Lituchy’s research was biased and seriously flawed. Lituchy allowed outsiders to attend the interviews, who may have suggested answers to the interviewees. Those interviewed were present during all other interviews, contaminating the results. Lituchy made no effort to interview refugees in Macedonia or Albania, though the project’s goal was to determine the reason why refugees fled Kosova. He admitted undertaking the research with a predetermined bias against NATO, known by those interviewed. Yet he insisted that the published result was legitimate scholarship. The chamber was growing impatient with Milosevic’s refusal to abide by the rules, and his continued mismanagement of his own case, resulting in a chaotic, disorganized, and time-consuming defense. Despite Judge

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Robinson’s clear explanation of the limits of examination in chief, Milosevic persisted in asking leading questions that provided his witnesses with the answers he sought. This tendency was so pronounced that his witnesses appeared to be actors playing their parts in a drama of Milosevic’s design, but so ineptly that he had to constantly prompt them when they forgot their lines. The Document Game

In preparation for military testimony at the tribunal, the FRY Department of Defense under General Nebojsa Pavkovic established the misnamed Commission for Cooperation with the ICTY in April 2001.9 Its purpose, summarized by Milosevic to the prosecution’s astonishment, was to sort out “problems of interpretation where there were different interpretations of events.”10 In other words, the military and its civilian authorities wanted everyone to be telling a consistent story before testifying in court. Or as Geoffrey Nice alleged, “to shield from this Tribunal anything that would have been harmful to the VJ. Its purpose was to obstruct this Court.” The commission’s stated functions were to respond to prosecution requests for documents; to provide legal aid and assistance to Serbs accused of war crimes by the ICTY; and to “answer” the OSCE book “As Seen, as Told,” a compilation and analysis of war crimes committed in Kosova from October 1998 to June 1999, written by KVM monitors who were there. The actual function of the commission and its expert team dramatically came to light during Milosevic’s defense case. The disclosure of Milosevic’s access to vast amounts of original material which neither he nor the government in Belgrade had made available to the prosecution, as required by court rule, came when General Bozidar Delic, Kosova wartime commander in Prizren and Djakovica, testified for the accused in June 2005. He brought 629 documents that Milosevic planned to offer as evidence. The accused selected them from a list of 10,400 that Delic had ferreted out as potentially relevant from among archives to which he had access when he worked for the commission.11 This confirmed the prosecution’s worst suspicions but did not seem to impress the court. Delic testified that while working for the commission he spent three thousand hours combing the records for evidence to help the ICTY prosecute KLA members. Yet he did not expend the same efforts in searching for documents that the prosecution requested for use in the trial of his former commander in chief. He testified that while he found many crimes committed by

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the KLA, he found none committed by Serbs. As usual, many of the documents that Delic brought were not translated or included on Milosevic’s list of exhibits, as ICTY rules required. The prosecutor faced an impossible task of testing the evidence. Yet he could not object to its admission wholesale, as the eight binders included some documents he had been seeking for years. Delic’s documents included statements that he and other VJ officers made at the commission’s request. What they did not contain were the original, contemporaneous maps, plans, combat reports, and other records of military activity in 1998 and 1999. As Nice told the court, the commission acted as a filter, deciding what evidence would reach the ICTY. It also helped to create the evidence. Under cross-examination Delic revealed that he and a handful of VJ officers drew a map to be used at trial. They each wrote statements taking issue with events described in “As Seen, as Told,” reconciling them to prevent contradictions. These were submitted to the court in place of contemporaneous material. Faced with these revelations during trial, Nice sought and obtained the official documents of the commission, though it took two and a half more months to get them. The documents disclosed that the commission had created an expert team in February 2002, expressly to assist Milosevic with his defense. In order to make sure this activity [the trial of Slobodan Milosevic] is monitored, assessed and parried actively and in an organized manner through adequate measures at the level of the VJ General Staff and the SSNO [Ministry of Defense], the Commission proposes to do the following. . . . To form within the VJ General Staff an Interdisciplinary AnalyticalExpert Team, . . . which would, from the beginning to the end of the trial . . . carry out the following tasks: “Monitoring and analysis of the documents and information presented by The Hague Tribunal Prosecutor, the assessment of accuracy and the preparation of proposals for the Defence and the refutation of the Prosecution allegations in the form of military expert opinions, and the selection of documentation from the VJ archives with which to refute inaccurate allegations and to disprove other allegations by the Prosecution for every former or present member of the VJ ”12 (emphasis added). As this quotation indicates, the expert team’s purpose was to protect the army, especially its former commander in chief, by disproving allegations, whether accurate or not. The expert team’s responsibility for “preparing evi-

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dence” was also stated in the official documents. Creation of an expert team was proposed “for following the trials in The Hague and for the preparation of the defence regarding accusations that the Yugoslav army participated in committing of war crimes during the war in the former SFRY, with the goal of preparing evidence with which the Prosecution’s allegations could be refuted ” (emphasis added). The document confirmed Nice’s conjecture from 2003 that the documents provided by Serbia favored the accused. The commission was intent on assuring consistent testimony by VJ officers, as the following passage shows: “Measures have been taken to prevent the arbitrary going and giving of statements to The Hague Tribunal office in Belgrade, as well as measures to prevent members of the Yugoslav army from accusing each other.”13 General Milos Djosan’s testimony also illustrates how Milosevic and his allies manufactured evidence for trial. On 27 April 1999 an unknown number of men in Hasanaj Dolina were separated from a convoy and executed, according to the indictment. Since the incident occurred in Djosan’s area of responsibility, the commission asked him to respond to the accusation. While the commission lent the general a copy of “As Seen, as Told” to review in formulating his response, Djosan told the court that he had only “leafed through it.” He wrote his statement from memory, he claimed, including dates, times, and the location of his units. Nice read an example from his statement of what he was able to remember: “Within the framework of the operation by the VJ and the MUP forces to neutralize the activities of the STS [“terrorists”] in the Trava sector, the unit participated in a seal-off operation on the following line: To the left, trig point 442; to the right trig 478 Batraki, aimed at preventing the withdrawal of the STS on the axis of Racaj village-Skivjan village.” That is a lot of detail to recall several years after the fact. Djosan replied that the statement was based on the recollections of Colonel Zlatko Odak, who commanded the battalion involved. When Nice pointed out how similar Djosan’s statement and Odak’s were, the witness responded that this is what happens when people tell the truth. Further questioning revealed that neither Djosan nor Odak, his subordinate, had reviewed primary material in reconstructing events. In fact Djosan did not rely on his own memory but on that of Odak, who wrote both statements and derived the trig points by looking at a non-contemporaneous map. Just as he had not reviewed the original material—such as maps, plans, orders, war diaries—when he wrote his statement for the commission in 2002, Djosan did not bring any of it with him to court. All this leads to the conclusion that statements were created for the tribunal without reference to original material, and that this created reality was provided to the court at 364  T he W o r l d A c c o r d i n g t o M i l o s e v i c

the same time that anything potentially inconsistent from contemporaneous documents was kept from it. Nice’s cross-examination of General Delic revealed another surprise: Q. . . . Have you, by any chance, got any more documents with you here today . . . beyond the binders we’ve already seen? A. Well, leaving Belgrade, I was thinking about what else I might perhaps need, and I do have certain other documents with me. Q. What other documents have you got with you? Give us the general list. I don’t want suddenly to be presented with things at the last minute, you see. What other documents in general have you got with you? A. It’s difficult to give you a list, but I have, for instance, my war journal, my combat reports. I have the war journal of my commander. . . . ... Q. And is the journal the war diary that we’ve been seeking? A. Yes. Yes. You asked for it. In fact, you asked for all war diaries. Q. And we were never provided with them, were we? A. I don’t know whether you received them. You probably received some of them. But you should have short-listed the documents you required, from which units you wanted war diaries. The way you formulated it, not a single sovereign state will give you that. Given that war diaries are kept by battalions, of which eighteen were in Delic’s brigade, this was not such an onerous request. Anyone familiar with military record keeping would know instantly how to identify war diaries. They were official records, required to be kept by each battalion, not personal journals. Yet Belgrade maintained that the request was overbroad and the court upheld the government.14 Cross-examination of Lieutenant Colonel Janos Sel, company commander assigned to Djakovica during the war, also unexpectedly disclosed the presence of contemporaneous documents not made available to the prosecution or the court. Nice’s first question to the witness was: “Colonel Sel, what, if any, documents or reports have you brought with you that were prepared at the time of these events?” Sel answered: “Mr. Nice, I, as company commander, do not have any written documents.” Later, however, in response to Nice’s suggestion that a former member of his command claimed he had ordered them to attack villages, Sel unwittingly replied, “Mr. Nice, fortunately, I kept all the lists of all the soldiers I had in my unit. So I’ll have to check in these lists about the names of these five soldiers. But I do not remember them. They do not sound familiar. As for the lists, I have them at T he W o r l d A c c o r d i n g t o M i l o s e v i c   365

home.” Nice expressed surprise, “Because I thought that all your contemporaneous documents had gone, and you were asked about names earlier, you said nothing about lists then. What other documents do you have at home?” Sel responded, “These are lists that I still have because when I filled out a work notebook, then I’d have to hand it in and then I’d get a new one. So these work notebooks still exist, with the lists of the soldiers’ names, and that is where I entered the tasks for that day, the orders received.” The work notebooks were not just private aids, as the above makes clear. Sel went on to say that they were archived and kept in his unit. Yet they had not been given to the prosecution. Nice learned of the existence of Sel’s work notebooks by happenstance, near the end of cross-examination. As he told the court in requesting more time, “Your Honours, obviously it is, if I may say so, extraordinary and something that would not happen if there was a professional lawyer representing this accused, for us to find out, despite my first questions, at the end of the time I’m frankly allotted to cross-examine this witness, that there is apparently a contemporaneous record [kept] on a daily basis. It is extraordinary and unhelpful in the extreme for this Tribunal. I would ask that this witness make those documents available.” Milosevic jumped in to defend his witness. “I’m trying to say that there is a total misunderstanding, because at the very outset [Nice] asked and now again he is using the word ‘document.’ In our normal communications, military and civilian, a personal notebook, a work notebook, is not considered to be a document. A document is something that has a stamp, a seal, a signature, and so on and so forth. So he is confusing the witness. He didn’t ask him: Do you have some notes? Do you have any recordings? He asked whether he had a document.” The transcript shows that Nice asked if he had documents or reports. But what Milosevic was doing was more objectionable: as he often did, he was suggesting an answer to the witness. The prosecutor objected, “Your Honour, I must protest. To allow the accused to make observations like this, as he’s done on many occasions throughout this trial, is simply to allow him to rehearse the witness.” Sel dutifully agreed with everything Milosevic had said. Before the court adjourned for the day Nice concluded, “[I]t is simply laughable that we are presented by the VJ Commission with second-hand material, allegedly prepared from memory, when there is this welter of contemporaneous material that we’re extracting at the last minute in this way.” Nice received a court order for the witness to produce the work notebooks by

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next day. Twelve days later he resumed cross-examination, work notebooks in hand. In-court revelations about the commission put the judges on notice, if nothing before had done so, that Milosevic, his allies, and his supporters were bent on manipulating the judicial process to their purposes and undermining its function as a truth-seeking endeavor. While the judges occasionally lectured Milosevic, they did not respond in a manner designed to expose and stop him. Either they had been lulled by Milosevic’s continual efforts at subterfuge over four years or felt that the process itself, through crossexamination for example, would solve the problem. Cross-examination exposed some of Milosevic’s machinations, but the seriousness of the fraud being perpetrated called for more—an investigation into the ongoing attempts to distort the justice-making process, followed by efforts to stop them. The prosecutor, though exposing Milosevic’s intrigues, did not ask the court to take any such extraordinary measures. Perhaps the length of the trial itself, arguably another result of manipulation by the accused, inhibited the prosecution from requesting and the judges from ordering anything that might lengthen it further. And while evidence was extensive in the trial record, it would be hard to prove the intent of those engaged in what appears to have been a concerted effort to cover up a conspiracy, in effect the continuation of that conspiracy. Trial analysts, historians, and Balkan specialists should not ignore the issue, however. It calls into question the legitimacy of all documents that Milosevic submitted, as well as the truthfulness of the witnesses he called. The possibility of wholesale fraud is one of the most important issues to arise from the trial of a head of state who denied the legitimacy of an international war crimes court and its power to try him, while baldly asserting that he would participate only to use it for his nonforensic purposes. It is a grave disservice to the future of international justice, scholarship, and historical truth to leave unanswered, without serious investigation, the question of whether Milosevic intentionally set out to perpetrate a fraud on the court. The question obviously has implications for future trials of indicted war criminals, leadership cases in particular.

The judges took the prosecution to task on several occasions for its pursuit of documents during cross-examination. Judge Bonomy reprimanded Nice for doing investigation “on the hoof.” In a more usual court proceeding, investi-

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gation would be completed before the trial begins. Here the prosecution was forced to close its case before it had received many important documents, which only came to light during the defense case. In using cross-examination for further investigation, the prosecution was fulfilling its obligation in the only way remaining open to it. While the court ordered production of a number of documents during the defense case (e.g. war diaries), it was impatient with the prosecutor’s focus on documents and cut short cross-examination that sought new ones. The trial chamber allowed additional time for cross-examination when documents that the prosecution had been seeking for years suddenly appeared with a defense witness. However, since its case was closed, the prosecution had trouble admitting these newly found documents into evidence when the accused opposed doing so. That was the case during Delic’s testimony when the prosecution finally secured the official documents establishing the VJ Commission and expert team. Nice argued that the court should admit documents produced by Serbia during the defense case that the prosecution had been seeking before the closure of its own case. The court declined, admitting only so many of the documents as Nice used in cross-examination. Given time restrictions, the court limited important evidence that it could have considered, while admitting statements that VJ officers made to the commission, prepared for purposes of litigation. That evidence was inherently less reliable than contemporaneous documents, a large number of which were kept out of evidence by circumstances so bizarre that they could not have been accidental. The court reprimanded Nice for imputing bad intentions to the accused for providing General Djosan’s war diary after Nice completed crossexamination. Without court permission, Nice would not be able to question Djosan on parts of the war diary that Milosevic had selectively presented. Robinson was severe: “Mr. Nice, you’re coming very close to imputing ill motives to the accused without any proper foundation, and I cannot sanction that.” Frustrated by evidentiary constraints, Nice would not back down: “I beg Your Honour’s pardon, but I’m not doing any such thing. What I’m doing is drawing to the Court’s attention, in the course of a forensic process that needs to be rigorous, first of all the extraordinary fact that documentation like this which we’ve sought . . . time and time again first comes to our attention in the circumstances it does; and . . . there is now clearly a document, the Reka plan, which is of extreme importance, possibly, to one of the most serious and notorious events that happened in this region at the time, and

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it’s a document we’ve got to get our hands on, if it exists, and before there’s any question of its not being provided, whoever holds it, in its best form.”15 Steven Kay objected that Milosevic had nothing to do with disclosure issues between the prosecutor and Serbia. Judge Bonomy agreed: “[I]t does appear to me Mr. Kay is quite right, that applications for documents made by the Prosecution are ex parte of the accused and therefore he isn’t involved in that process. . . . You may be perfectly justified in your criticism but it’s important to get the right basis for that criticism.” Normally that is correct. But in Milosevic’s case there were strong indications that elements in the military were acting in concert with the accused. As noted above, the court should have ordered an investigation. The court’s harshness with the prosecution was unwarranted and misplaced. It should more properly have been directed at the government that continued to withhold important documents and at the accused, who disclosed evidence when the prosecution’s opportunity to test it had passed. Perhaps the court focused its efforts to manage the trial on controlling the prosecution because it could not control the accused. Whatever the reason, it was unfair to the victims and survivors (as well as the general public in the Balkans and elsewhere), whose interests were already treated as peripheral.

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M i l o s e v i c’s L o ya l i s t s Chapter 14

“I Prefer Death to Going Home in Disgrace”

About four months after Milosevic reassumed control of his defense, his blood pressure again rose beyond acceptable limits and he was unable to attend court. He had finished examining the Kosova Serb leader Kosta Bulatovic, and Nice had begun cross-examination, when the court convened on 19 April 2005 to consider what to do. The appeals court order returning Milosevic to first chair provided for his appointed counsel Kay and Higgins to take over in just this situation. Now was the time. Kay argued that the appeals chamber had not considered whether it would be permissible to hold a trial in absentia (without the accused) and argued that it was not. After hearing Nice’s argument that a transcript and video recording could be made available to Milosevic, the court ordered the trial to proceed. If Milosevic thought the proceeding unfair, he could seek to have the witness recalled. There was only one problem with this scenario: a problem foreseen by trial observers but ignored by the appeals chamber. What if Milosevic’s witnesses again refused to participate in his absence? That is precisely what happened. When Kosta Bulatovic returned to court, he advised the judges: “I have come at your invitation to testify here for my president, the president of the state, Mr. Slobodan Milosevic. . . . Mr. Milosevic is not here today, and I am a witness. I am Milosevic’s witness and nobody else’s witness. So without his presence, I cannot make any statements nor can I have any conversation. Thank you.” When Judge Robinson pressed him to testify, he resisted: “[W]ithout the presence of Mr. Milosevic, I cannot accept any kind of examination. You must understand me. That for me would be a shame, it would be a defeat,

and I prefer death to going home in disgrace.” Though the court gave Bulatovic a night to think about the consequences of a contempt finding (up to seven years in prison and a fine of 100,000 euros), he did not change his position. The court then directed the prosecutor to initiate contempt proceedings. After a hearing on 6 May the court convicted Bulatovic of contempt and sentenced him to four months in jail.1 In the decision Judge Robinson wrote: “What the Respondent’s conduct amounted to was a determination and declaration that he would give evidence only on his own conditions. He thus defied the authority of the court and created the risk that the authority of the Trial Chamber would be undermined and the administration of justice would be brought into disrepute.” The power of contempt was one of the few tools available to the court to manage obstreperous witnesses or parties. It would have served the trial better had the judges used it more often. As for Bulatovic, the court suspended his sentence for two years because of his ill health. Milosevic returned to court on 25 March and did not miss another day until November 2005, when he put into play a plot to secure his release.

In 1994 Kosta Bulatovic told a reporter, “[S]ince it is we Serbs from Kosovo who created Milosevic and let his genie out of the bottle, we consider ourselves to be responsible for everything that is happening to the Serbian people and Serbia today. Milosevic soared to the throne on the shoulder of the Serbian Resistance Movement in Kosovo and Metohija. The movement prepared everything for him and enabled him to rule in whatever way pleases him.” At the time of the statement the Kosovo Serbs felt betrayed by Milosevic, who promised much but delivered little. As the accused imposed sanctions on the RS, they feared they would be sacrificed next. In court after Milosevic’s return, Bulatovic described a different Milosevic, one who listened to Kosovar grievances and took action through the constitutional changes of 1989 that ended Albanian dominance in Kosova institutions. He denied, however, that Kosovars were ousted from their positions, asserting that they left voluntarily and set up parallel institutions, funded by the Middle East, drug trafficking, and the arms trade, according to news accounts he read. He never saw any discrimination against Albanians. Nice read from the petition circulated in 1994 on which Bulatovic was the first signatory. It maintained that Milosevic used Kosova to win and preserve power. Yet five years after passing a program to resettle 100,000 Serbs in Kosova to redress the Albanian population dominance, the number of m i l o s e v i c’s l o ya l i s t s   371

Albanians had increased by 25,000 while Serb immigration was negligible. The petition demanded a halt to the Albanization of Kosova, dissolution of the Kosovar parallel state, and the settlement of Serbs in the province. It was meant to provoke Milosevic to act, Bulatovic said. Yet he denied that it precipitated an increase in discrimination, police brutality, restrictions on freedom of association, and political trials of Kosovars, as human rights groups reported. Bulatovic’s testimony highlighted Kosova’s importance to Milosevic. As he told Wesley Clark, it was more important to him than his own head. The disintegration and violence in Yugoslavia had their genesis in Kosova and ended in Kosova. However much Bulatovic tried to support his former president, what emerged from his testimony was the pivotal role that Milosevic played in the Yugoslav tragedy.

Milosevic paraded his loyal military officers through the courtroom in his defense against accusations that they helped him carry out a plan of ethnic cleansing in Kosova, involving murder, persecutions, rape, physical abuse, and the destruction of private and cultural property. One after another from June 2005 to January 2006, nine officers from captain to general gave testimony that was banal in its repetition: the FRY army was highly professional and skilled, operated according to law and the Geneva Conventions, only fired when fired upon and then with proportionate force, and protected all Kosova civilians of whatever nationality while attempting to destroy terrorists, which is every country’s right. Though encouraging civilians to remain at home, the VJ escorted columns of them through mined areas to safety when they insisted on fleeing to Albania or Macedonia, giving them food, water, and medical care when they could. The people said they were fleeing from NATO bombing, from KLA forced labor, or on KLA orders to create a humanitarian catastrophe for coverage by the media. The army only fired at houses or mosques after they were fired upon from these locations. It did not surround, enter, or fire on villages, but only established defensive positions against the KLA and an expected ground invasion by NATO. While the VJ cooperated with the MUP, it was not involved in joint operations or under any joint command. There were no paramilitaries in Kosova. Destruction to houses, mosques, shops, barns, and other buildings was caused by NATO bombing or fighting with terrorists, who were killed in combat, never executed. Orders required taking great care to protect civilians. Individual soldiers committed crimes but were promptly arrested, charged, and sent to 372   m i l o s e v i c’s l o ya l i s t s

appropriate military judicial authorities. All the Kosovars, not to mention international observers and a few VJ soldiers who testified otherwise, were liars. Such was the world according to Milosevic.

Milosevic’s loyal generals also provided the prosecution with an opportunity to place the Joint Command once more before the court. The Joint Command was the phantom body created by Milosevic to direct military and police action in Kosova from the time of its creation in June 1998 until VJ and MUP forces left Kosova in defeat in June 1999.2 It subverted the legally established system to deal with a rebellion and conduct a war. In time of war the FRY constitution authorized the Supreme Defence Council to make decisions on war and peace. It was composed of the presidents of Serbia, Montenegro and the FRY: Milosevic, Milo Djukanovic, and Milan Milutinovic. Since Djukanovic sat out the war, keeping Montenegro neutral, the SDC never met. A mysterious body called the Joint Command took its place. It was Milosevic’s vehicle, allowing him to direct action on the ground through political actors whom he controlled. Sainovic headed the command chain in Kosova, passing on the Joint Command’s orders to loyal generals and MUP commanders in the field. It bypassed those who opposed Milosevic’s brand of illegal war in Kosova, such as General Momcilo Perisic. In effect Milosevic was the Joint Command. When General Delic appeared in court Nice confronted him with Perisic’s letter of 23 July 1998 to Milosevic, in which he protested Milosevic’s disregard for the command structure in using the army. Perisic’s letter continued, “[T]he commander of the Pristina Corps plans what he has been ordered to do, and this is at the request of Sainovic and Minic and the MUP, and so turns into something like a service of theirs.”3 Delic responded that everything done within his unit and the Pristina Corps was within the rules. The letter went on to remind Milosevic of Perisic’s recommendation that Milosevic declare a state of emergency on 20 April 1998, to enable the VJ to move into Kosova and put down the rebellion. According to the constitution and laws, MUP forces could then be subordinated to the VJ. But Milosevic did not want that. The MUP (the “army” Milosevic created to do his bidding when he was president of Serbia) reported directly to him through Sainovic, as did military officers who would follow his orders, unlike General Perisic. The accused, with his closest allies, was at the pinnacle of this edifice, called the Joint Command to give it an air of legitimacy.4 Milosevic’s loyal generals m i l o s e v i c’s l o ya l i s t s   373

disavowed its existence not only because it was illegal but also to insulate the “boss” from direct connection to crimes committed in Kosova. Two orders directly contradicted their testimony. Both dated 6 July 1998, they passed on superior orders from the Joint Command. One, signed by the 125th brigade commander, stated that no operations were to occur “without the knowledge and approval of the Joint Command.” The other was signed by General Delic, who nevertheless continued to deny that the Joint Command existed, calling it a “notion.” Nice produced another order, directly from the Joint Command, dated 23 March 1999, the day before NATO bombing began: “The Joint Command for Kosovo and Metohija from the Pristina section shall command and control all forces during combat operations.” Delic backed down, stating that he was “absolutely not denying what was written,” but that he was only in contact with his corps commander during combat operations. Delic denounced Perisic as a traitor and said that he overstepped his position by challenging Milosevic. He maintained that the army’s rules of service permitted it to take actions against “terrorists” without a declared emergency. In the FRY legal system army rules did not take precedence over the constitution and laws, however. General Geza Farkas, head of military security during the Kosova war, obligingly repeated Milosevic’s litany of concern that his soldiers follow all national and international laws and rules of behavior. When Milosevic heard rumors of crimes being committed in Kosova his second in command, General Ojdanic, sent Farkas down to investigate. He ordered immediate action be taken against all violators, Farkas testified. He issued orders banning paramilitaries and directed the head of the SDB to get rid of the 30 Tigers he had accepted from Arkan. He ordered the border with Bosnia be closed if it became necessary to stop the “so-called greater Serbs” from spreading “their Serbdom in their way,” he said. Farkas was in a position to know. As head of army security he was an ex-officio member of the Supreme Command Staff and attended meetings with Milosevic and the highest VJ and MUP ­officials. Asked what political body instructed the army, Farkas referred to a “Supreme Command” and a “Supreme Command Staff.” “There was no special political body for that. The leadership of the state was entering a war, and the state is led by the head of state who is at the same time the Supreme Commander. There is also a Supreme Command, and within the Supreme Command he is the Supreme Commander. So both the Supreme Command and the Supreme Commander command the army.” A letter from the gov374   m i l o s e v i c’s l o ya l i s t s

ernment in Belgrade stated unequivocally that a Supreme Command did not exist under the laws and constitution of the FRY, and the Supreme Command Staff appeared to be another name for the Army General Staff. The letter continued, “According to all available information, the army of Yugoslavia before, during and after the state of war in 1999 was under the command of the President of the Federal Republic of Yugoslavia [Milosevic].” As Nice suggested to the witness, the Joint Command and the Supreme Command were both Milosevic. “He ran everything; police and army.” Farkas agreed. “Well, somebody has to manage.” It is normal, he said, for the president of any state to command the armed forces during war, just as it is normal for the president to command the police. When the prosecutor confronted Farkas with evidence of a Joint Command meeting in June 1999, attended by his deputy Aleksandar Vasiljevic and high MUP and VJ officers, the witness admitted that Vasiljevic had been there. It was an exchange of information, he said, agreeing that the meeting was led by Sainovic, Milosevic’s man in Kosova. In 2001 General Pavkovic (commander of the Third Army during the Kosova war) gave an interview to local news media in which he admitted the Joint Command’s existence. Because the MUP refused subordination to the VJ, coordination was carried out through a political body, the Joint Command. Pavkovic later denied this. Milosevic produced minutes of a Joint Command meeting, including all VJ and MUP top brass and himself, to support his claim that the Joint Command was merely a coordinating body. The chain of command did not circumvent anyone, he implied. That did not answer the question of his hands-on management of a war against Kosovar civilians as well as NATO and the KLA. Djakovica Crime Scene

In addition to Racak, which happened before the war with NATO began, Milosevic focused significant Kosova evidence on the municipalities of Djakovica and Kacanik near the Albanian border and the municipality of Orahovac abutting Djakovica. According to stenographic notes of a meeting involving Milosevic and Perisic in 1995, the accused had directed his attention to Djakovica much earlier: “[T]he most beautiful town in Kosovo, the one in which the Siptar separatists invested the most, that is . . . Djakovica. There is no prettier, richer, or more organized town in Kosovo than Djakovica is.” Milosevic, over Perisic’s opposition, had an abandoned barracks reconstituted with an active military presence. He intended it to be a threatening reminder of Serbian power to upstart Kosovars, according to Nice’s m i l o s e v i c’s l o ya l i s t s   375

explanation of the Milosevic’s statement in 1995 to Perisic: “It is well known that ‘fear keeps the house safe.’ ”5 Djakovica was a cultural and intellectual center for Kosovars. With an Albanian population of 90 percent, it had a tradition of resistance to Serbian rule. In the 1990s its residents supported Ibrahim Rugova’s nonviolent LDK party. In response to the events of 1998 and 1999, many of its young men joined the KLA.6 Perhaps as a result, Djakovica city suffered the most intense violence of any of Kosova’s major cities during the conflict.7 Kosovar Albanian prosecution witnesses had testified that Serb forces herded them from village to city to village throughout 1998 and early 1999, until many were forced across the border into Albania. Homes and fields were burned and means of livelihood destroyed. The witnesses claimed that their identity documents had been taken and money and valuables extorted from them. Some described beatings, rapes, and killings by Serb forces as they were moved toward the border. Others reported massacres and mass destruction of their villages. In Meja police and VJ separated twenty-four men from a column of civilians and executed them.8 In Djakovica town Serb police found twenty people, including nineteen women and children, hiding in a basement, shot them, and burned the house. None survived.9 In Celina, Agim Jemini watched from an attic window as special police executed his parents and other close relatives.10 Along the Prizren-Djakovica road at Mala Krusa police rounded up 109 men, ordered them into a deserted building, and proceeded to shoot them with automatic weapons. Police set the structure and bodies aflame; 103 people died and only six survived.11 Merfidite Selmani, sixteen years old, watched as police tore her father and brother from their convoy, sending them to join eighty other men in a meadow. None were seen again.12 Another sixteen-year-old, Merita Dedaj, saw VJ soldiers put her father, uncle, and cousin against a wall and shoot them.13 In nearly all cases the VJ was there, surrounding the village, blocking exit, shelling to “soften up” the people for the police invasion, then herding columns of civilians toward the border with Albania. One by one Milosevic’s upstanding VJ officers who served in Djakovica declared under oath that these people were lying. The military men were there. They saw nothing of the kind. Only terrorists were killed, they asserted. According to the prosecution, the FRY took the opportunity provided by NATO bombing to fully implement Operation Horseshoe, a plan to drive the majority of Kosovars out of the province.14 Milosevic insisted that the movement of people and destruction of property was caused by falling bombs, by collateral damage during conflict with the KLA, by the KLA itself, or by the 376   m i l o s e v i c’s l o ya l i s t s

FRY’s efforts to protect its citizens by moving them out of harm’s way. Death and destruction across a wide swath of Kosova was not their doing. It was caused by NATO and the Kosovars themselves.

Lieutenant Colonel Zlatko Odak was commander of the logistics battalion in the air defense brigade stationed in Djakovica. He testified that on 24 March 1999 NATO targeted the bazaar in the town center. He did not actually see the attack, he said, but he arrived on the scene soon after it occurred. General Milos Djosan, with overall responsibility for Djakovica municipality, also testified that NATO bombed the center of Djakovica town on 24 March at 8 p.m. “After several detonations, I saw from that hill that the Catholic Street where the said mosque was located was on fire.” Djosan was not in a position to see what caused the fire. Milosevic’s third witness to testify about Djakovica was a notorious collaborator, Muharem Ibraj, who merely asserted that NATO bombs destroyed the mosque, police station, fruit juice factory, and bazaar, with no indication of how he knew about the destruction. Nice challenged Odak with the testimony of Andraś Riedlmayer, Harvard expert on Islamic culture and architecture, who visited Djakovica and other sites shortly after the war ended. “Of the above sites [the Prizren League Museum, the historic bazaars in Pec and Djakovica], not one was found to show any sign of damage attributable to an air attack,” he concluded. When thus confronted, Odak changed his position. He had not been at the site and knew nothing about the attack. Odak claimed that survivor evidence of the massacre of nineteen women and children at 157 Milos Gilic Street and a fire that consumed the bodies was “absolutely not correct.” His men were in the area that night and described the scene as “absolutely peaceful.” General Djosan, his superior, backed him up, repeating the story and concluding that if anything had happened he would have known. When Milosevic asked Djosan to comment on Xhevahire Syla’s testimony that mixed forces entered her neighborhood in Djakovica and forced people to leave for Albania, Djosan said that her testimony was not true. Judge Bonomy inquired how he was in a position to know. Because the police and VJ would not do that, he answered. “So you base this on your own view of the integrity of the army and the police and on nothing else?,” Bonomy asked. The witness said yes. Bonomy turned to Milosevic: “Mr. Milosevic, for my own part I see little—in fact, I don’t see any benefit in seeking the logical analysis of a situation by this witness from the point of view of his general views about the integrity of the army and the police. I think we need m i l o s e v i c’s l o ya l i s t s   377

to hear evidence of his knowledge of circumstances, and I found a lot of the recent evidence pretty pointless for that reason.” Neither witness brought by Milosevic to counter evidence of massacres in Djakovica town had been at the locations where the massacres took place. Rather than bring eyewitnesses, Milosevic relied on what the rule book said should happen, just as he relied on written law and orders to prove that no crimes had been committed. A man whose word was sufficient to establish truth during his years of rule, Milosevic challenged the prosecution’s evidence of crimes by merely pronouncing the evidence false. Faking a Humanitarian Catastrophe

“Together with the Pristina Corps, the finishing touches are being put to the plan for a broad anti-terrorist operation in the period between the possible air strikes and the entry of ground forces,” General Obrad Stevanovic of the MUP wrote in his war diary on 16 February 1999. According to a document signed on 9 March 1999 by Bogoljub Janicevic, chief of police of Urosevac, the campaign actually got under way in Kacanik several weeks before NATO air strikes began: “Starting at 0530 on the 8th of March . . . members of the Urosevac SUP and Gnjilane SUP special police units, together with members of the VJ, launched an operation to clear the villages of Straza, Ivaja, Gayre and Kotlina, Kacanik municipality, of the terrorist gangs which have carried out terrorist operations in this area.”15 Janicevic testified that the border unit of the VJ’s 243rd Motorised Brigade planned the “mop-up operation” against “Siptar terrorist gangs” that had been increasingly active in the area since the beginning of the year. The problem was that Serbian forces made no distinction between “terrorist gangs” and civilian Kosovars. Kacanik municipality lay along Kosova’s border with Macedonia. A main highway and the railroad line passed through the village of Djeneral Jankovic, making the area important to both the KLA and Serbian forces. For the KLA it provided access to supplies and personnel. Serbian forces wanted to stop that. It was also important to Serbian forces as a path along which to funnel Kosovars out of the country. For the villagers whose homes had been burned, livestock destroyed, and lives threatened, it was a route to safety, as well as misery and uncertainty. Janicevic gave Milosevic’s version of the events of 9 March based on documents filed by his infamous subordinates, Officers Jasovic and Sparavalo:16 “In this document, . . . it is important to say that in the area of Pustenik, municipality of Kacanik, there were about 200 persons who, on orders by a person who later became local commander, had to leave their 14 homes 378   m i l o s e v i c’s l o ya l i s t s

and go into the woods in order to portray this as a humanitarian catastrophe to the international monitors.” Should this not seem ludicrous enough, Janicevic elaborated: “The team of verifiers [KVM], in addition to Acif was joined by Ljaci, who, at the suggestion of the interpreter of the OSCE, forced the women and children to cry in order to pretend that the situation in the settlement was very difficult and that it constituted a humanitarian catastrophe.” Some unidentified person or persons had directed an exodus of massive proportions, complete with crying mothers, children, and old people, the accused maintained. The prosecution’s witnesses described a different reality. Hazbi Loku, a primary school principal, testified about the events of 9 March as he experienced them in Kotlina. Around 8 March the villagers felt explosions and shelling from nearby villages. The next day the MUP and VJ attacked Kotlina. Unable to escape, people hid in the village. Looting and shooting continued until dusk, when Serbian forces withdrew. Villagers found much of their village destroyed: doors burned, windows broken, shops run over by tanks. There was no electricity. All were looking for their nearest and dearest, Loku said. They waited all night for the missing to return. Hazbi Loku waited for his brother. After six days of searching he found him dead in the village stream. Loku broke down, prompting Judge May to ask if he could continue. “I don’t know,” he answered. After a short adjournment he returned to try again. He testified that the KVM arrived after the attack and agreed to stay in the village because there was no room for more IDPs in Kacanik, the nearest major town. Every night members of the KVM turned their vehicle headlights on the village so that the villagers could sleep. On 23 March, the eve of NATO bombing, the KVM pulled out. The villagers were on their own as darkness fell. The next morning Serbian forces shelled, then entered, Kotlina. Loku watched the looting, destruction, and killings from a hiding place on a hill in the village center. Serbian forces sent women and children away on army trucks. Loku described what happened to twenty-two men who were captured in a nearby forest. Serbian forces brought them near two large holes that the villagers had dug for water several years before. The holes were dry but deep, Loku testified. Again he broke down as he remembered. “Most [of the men] were young. They brought them to these holes. They didn’t know what was going to happen to them. The first ones were thrown in, two to four. Then everything happened. It was a nightmare,” Loku said, choking back sobs. “I could hear these shrieks. . . . I saw everything with my naked eye. I could hear voices screaming. They were maltreated in various forms m i l o s e v i c’s l o ya l i s t s   379

and ways. Some were begging, hoping they would let them go. After a half hour everyone was thrown in the holes.” Later, as he watched houses go up in flames, Loku heard a “powerful explosion.” “I saw smoke coming up. I understood nothing was left of them.” Loku continued, “They were all civilians from the village. Among them were three high school pupils, caught as they were escaping from their houses to save their lives.” In the evening, with everything in flames, Serbian forces left. Hearing the screams of animals being burned alive, Loku and his cousin returned to their houses and were able to free some of them. They found bodies scattered throughout the village, including that of an old man who had been a cleaner at Loku’s school. His body was starting to burn. “We pulled him out in the yard and left.” The prosecutor, Dirk Ryneveld, asked Loku if he left Kotlina later that evening. “Yes,” Loku replied, “After all that horror and burning. I didn’t know where my family was. I didn’t know what to do. With about 50 others, I decided to leave the village. We walked all night and crossed into Macedonia.” Hazbi Loku brought photos to show the court. He had taken them when he returned to his village, he said. The first photo showed Loku’s burned school, the second the coffins of those massacred. He had also brought photos of the young men who were thrown into the pits and killed. “I grew up with them and knew them all,” he told the court. Loku presented a five-page montage and began to identify each young man by name and age. After a short while Judge May stopped him, because an international criminal trial is not the place for honoring the dead. Several of the young men were his close cousins, Loku said. Like many other survivors he felt it important to memorialize the dead in some public way. Milosevic’s cross-examination began with accusations about the KLA, a list of people they allegedly kidnapped, and his assertion the KLA would not let villagers leave Kotlina. “It’s not true,” Loku responded. “When the fighting began nearby, we tried to get away but you killed us.” The accused turned to NATO. Did the witness know about NATO bombing the Post, Telegraph and Telephone building in Kacanik? Loku answered that it was still there and still working. Milosevic forcefully presented his case to the witness, as if he himself were testifying: “I claim not a single facility was destroyed or shot at, except one house where the MUP and VJ were shot at.” Loku just as forcefully replied, “You are wrong. You’ve got wrong information. More than half the houses of Kacanik were destroyed. Burned by the police and army. Not only houses. People were killed and mutilated. Committed by you. Your army and troops.” KLA soldiers were killed fighting Serbian forces, Milosevic maintained. Then he turned to a tactic he seemed to enjoy, playing on 380   m i l o s e v i c’s l o ya l i s t s

survivor guilt. Why did Loku and the others go to see about the animals instead of the young men in the pits? It was dark, the witness replied, and their fate was already sealed. When Milosevic asked why he did not report it to the authorities, Judge May interjected, “Why didn’t you ring up the Serbian authorities?” Loku answered, “But the Serbian authorities had already committed the crime.” During his defense case Milosevic and his witnesses stuck to the theme that Serbian forces were fighting terrorists in Kotlina. Bogoljub Janicevic, Urosevac police chief, testified that the bodies of the twenty-two young men were recovered from bunkers. They were terrorists killed in a clash with the VJ border battalion and the police, he said. But another defense witness, General Krsman Jelic, VJ commander in the region, denied that the VJ participated in joint operations with the police, just as he denied that the VJ was present in Racak. After the prosecution (aided by the court) repeatedly confronted him with his contradictory statements on Kotlina17 as well as with Janicevic’s order of 9 March (see above) and the order of 23 March 1999 from the Joint Command via General Delic to “support MUP forces in defeating and destroying the STS,” Jelic admitted that the VJ protected the MUP’s flanks and wings, while insisting that it never fired at or entered the village.18 The distinction, though likely carefully prepared, was not persuasive. About the twenty-two young men found in the wells and pits, Jelic told the court, “I never heard of a massacre or this mass killing, which that would have been. Had any killing like that taken place, or even close to that scale of killing, I would certainly know about that.” As for any explosions, NATO was bombing the region about 90 percent of the time, he said. Like Janicevic, Jelic was not an eyewitness to the events, but relied on reports from his subordinates. Nice confronted Jelic with the OSCE conclusion and forensic evidence of a Swiss disaster team. “As Seen, as Told” concluded, “Of the whole group of 22 men, 11 were apparently unarmed UCK soldiers in civilian clothes, selected and taken to the area close to the ‘wells’ where they were beaten, shots (probably of an execution) were later heard, and finally there was the noise of a loud explosion.” The Swiss disaster team in September 1999 identified twenty-five individuals from Kotlina and determined the “cause of death in 84 per cent of the cases was by explosion, and only 12 per cent from gunshot.” When Nice asked Jelic if he knew how these young men could have died from an explosion, Jelic was unresponsive, causing Judge Robinson to intervene: “General, do you have an answer to the question or don’t you, which is whether you have an explanation as to why these men, found in wells in m i l o s e v i c’s l o ya l i s t s   381

places where your troops were active, were dead for the most part as a result of explosions, which explosions are consistent with grenade explosions?” Jelic replied that he had no explanation, because his units did not enter the village. Judge Bonomy followed up: “General, what could conceivably have happened to these people other than that they were attacked in some way? Maybe justifiably, but all the signs are that they died through some form of attack. Now, you just know nothing about that?” Jelic replied: “I did not have any information about these people, because in that period the army did not enter the village of Kotlina.”

On 27 April 1999 Serbian forces launched a campaign against the Carragojs, Erenik, and Trava valleys. As General Djosan disclosed for the first time in court, it was conducted according to the Reka plan, Reka being the region between Djakovica and Junik. This was the first the prosecution had heard about the plan, and Djosan could not say where information about it might be obtained. Both Djosan and Colonel Milan Kotur testified that the purpose was to cleanse the area of terrorists. The VJ, they said, would never attack civilians. Nike Peraj, an Albanian VJ officer during the war and a witness for the prosecution, placed the VJ in the Carragojs Valley operation, as well as the police, special units, and paramilitaries. He testified that no KLA remained in the region. The operation’s objective was to force out Kosovars. There was also a score to settle. Milutin Prascevic (former state security chief in Djakovica) had been killed four days earlier. According to Peraj, “Nikola Micunovic, also known as Dragan, told me that the valley of Carragojs was going to pay a very high price. I immediately thought about the killing. . . . Together with him, four other people were killed.”19 He identified the VJ soldiers responsible, including Prascevic’s godfather, Micunovic. Peraj saw a report to VJ headquarters the day after the action stating that sixty-eight terrorists had been killed in Meja and seventy-eight in Korenica. But there were no terrorists in the valley, he testified. There were only civilians. It was no fight, he said, but a systematic, coordinated attack on a civilian population: “[N]ot a single member of the army or police were killed, nor anyone from the KLA and no one was wounded.” In the days following the assault the VJ and MUP looked for road-moving equipment to dispose of the bodies, according to his statement. Bodies from Meja later turned up in mass graves in Batajnica, VJ property near Belgrade. Peraj admired and respected Colonel Djosan. It was mutual. Djosan de382   m i l o s e v i c’s l o ya l i s t s

scribed Peraj as “an honest man who could be trusted.” Peraj claimed that Djosan opposed the operation in Meja, even arresting the MUP leader Aleksandar Micunovic, though he was released in three days through the intercession of Seselj and Arkan. Djosan denied having arrested Micunovic, as he denied much of Peraj’s testimony. He explained his belief that Peraj was lying out of fear of what KLA terrorists would do to him if he told the truth. “I do understand him. I don’t know what I would do if I were in his position in that situation.” Quite possibly, he was. Certainly this was true of Colonel Kotur. Djosan denied any massacre of civilians in Meja or Korenica. The actions were part of an antiterrorist operation, he claimed, though he could not say whether any terrorists were killed because he and his unit were not there. Judge Bonomy spotted a contradiction. The day before, Djosan had said that if anything had happened he would have known about it. Unable to see any contradiction, the witness made it worse when he later added that he knew the operation in Meja was an antiterrorist action because some of his soldiers were involved. Under cross-examination Djosan tangled his web further by refuting the OSCE’s account of the Meja massacre, saying, “My first question was whether the person who wrote that had been there, had seen that, or whether [he] had heard that from the local villagers. I said that I was in Meja myself during the NATO air strikes. And this person who wrote this, was he an eyewitness? Was he actually there?” Nice replied that the OSCE account was based on reports from six eyewitnesses. When he demanded to know whether Djosan claimed that all of them had made up the account of executions, the witness responded, “My assertion is that most of them or all of them give the kind of statements that they have to give. . . . Nik Peraj’s statement convinced me of that. Of course I don’t know these other persons.” The conclusion that no Albanian could give testimony favorable to Milosevic for fear of retaliation by the KLA was a recurring motif among defense witnesses. The prosecution unwittingly reinforced this opinion in another case. Milosevic gleefully pointed it out, reading from the prosecutor Stefan Waespi’s submission to a different trial chamber opposing the provisional release of Ramush Haradinaj, a Kosovar indicted for crimes against humanity: “Kosovo is still a very volatile region. Victims and witnesses have regularly contacted the prosecution to express their alarm at the provisional release of this accused.”20 In Serbia as well as Kosova, a witness might be in danger if his testimony displeased certain criminal elements, some holding positions of state power. Colonel Milan Kotur faced particular danger as a result of testimony by the prosecution witness Colonel Ciaglinski that on the eve of war, Kotur told m i l o s e v i c’s l o ya l i s t s   383

him about Serbia’s plan to drive all Albanians out of Kosova and showed him a map of how the operation would proceed. Milosevic charged that the prosecution was accusing Kotur of treason, then called him as a defense witness. In court Kotur adamantly denied Ciaglinski’s testimony, asserting, “That is a pure lie.” Demonstrating his loyalty, he dutifully affirmed Milosevic’s view of the Kosova conflict and the period leading up to it. Kotur was not Peraj’s friend. In fact Peraj named him as one of the leaders of the Meja massacre. Kotur vehemently denied this. He said he participated in a blockade afterward, to secure the region so the MUP could “clean up the area.” The army “never took part in any impermissible action.” Cleansing terrorists from Meja “was a MUP operation and the army had its own forces in the vicinity,” he concluded. As Nice pressed him, Kotur elaborated: “The operation was planned for two days, the 27th and the 28th of April. . . . This operation was carried out by the MUP of Djakovica with part of the army of Yugoslavia . . . to eliminate terrorist forces among our own forces. And since the MUP did not have enough forces to search the terrain, they asked whether they could have part of our forces that could take part in this.” Kotur added that he did not have a role in the Meja operation. Asked about an official report on the operation, Kotur agreed that one should have been included in the Pristina war diary, sought unsuccessfully by the prosecutor. Nice turned to statements from two anonymous soldiers who participated in the Meja operation (unlike Milosevic’s witnesses who claimed not to have been there). One reported a speech General Pavkovic gave: “As soon as the first NATO bombs fall on Kosovo, we will have to ‘clean our back from the Albanians.’ ” Nice interpreted this to mean “get rid of the Albanians.” Kotur said he was not present when Pavkovic allegedly gave the speech. The prosecutor continued reading from the soldier’s statement: “[H]e was instructed . . . to clean the area of Albanians and send them all towards Korenica, because they were waited for by the MUP with a list of names of terrorists. The witness explains that it was clear to him that this was a cover-up story and that the purpose of the operation was to cleanse the villages.” Kotur responded by affirming “that army units were involved as well as special units of the police; PJP.” The soldier’s statement continued: “During the operation, we only encountered civilians, sometimes arriving in villages already empty because the civilians probably see smoke and hear machine-guns and flee.” Nice added, “He describes how the mortar platoon was two or three kilometers behind in case there was contact with the KLA, but explains that hundreds of Albanian 384   m i l o s e v i c’s l o ya l i s t s

civilians were expelled on the first day and that, after they were expelled, their houses were set on fire in accordance with the order given.” When Kotur told the court that he had no information about hundreds of houses being set on fire, Nice persisted, “Well, how about some houses set on fire?” He secured an admission: “Some probably were.” When pressed, the witness backtracked: “When I say set on fire, I mean that they were burnt accidentally during combat operations. I didn’t mean that they were intentionally set on fire. I was not involved in the operation. I don’t know, but definitely it’s not true that hundreds of houses burned. Since the MUP was involved, maybe MUP was doing something I don’t know about. I don’t know that the army ever burned houses. I don’t know it. I think it definitely doesn’t hold as far as the army is concerned” (emphasis added). As important as the anonymous soldier’s statement was, it was not evidence. Likely the prosecution secured it after resting its case. The statement could only become evidence if the court permitted the prosecution to call the soldier to testify on rebuttal, and that was by no means assured. Kotur seemed like a man torn between fear and his conscience. He had to continue living among people who were taking note of his testimony, who had taken note of Colonel Ciaglinski’s testimony and Milosevic’s suggestion of treason. This background created serious problems for the court, which would have to sort through the testimony to find the kernels of truth. “Since I Did Not Hear It or See It, . . . It Didn’t Happen”

Orahovac municipality, bordering Djakovica and Prizren municipalities to the south, was in a state of high tension when the war began on 24 March 1999. Over the prior year fighting between KLA and Serbian forces in the area was fierce. According to Human Rights Watch and the OSCE, both sides committed human rights violations, including kidnapping and targeting civilians. During the war the municipality was the scene of several civilian massacres by Serb forces, according to prosecution witnesses. Simultaneous attacks began on 25 March throughout a cluster of Kosovar villages in the municipality’s southern part. The prosecution witness Sabri Popaj, a truck driver, told of burying 168 bodies with his own hands over the several weeks he moved around Orahovac, hiding from Serbian forces in March and April 1999. His odyssey began on the morning of 25 March, when tanks drove through his village of Celina, taking up positions on the surrounding hills. Automatic weapons fire drove villagers from their homes. After taking the people to the village school for safety Popaj returned to feed his livestock. Serb forces were entering the m i l o s e v i c’s l o ya l i s t s   385

village outskirts, using gasoline and flame throwers to burn houses. Hearing children crying from the direction of the Belaja stream, he approached and found fourteen members of two families, whom he accompanied part way to the village of Rogovo. When they rested he turned to go home, but there was shooting around him and twelve policemen nearby. Many more came from the opposite direction. They approached the families he had just left, yelled abuse at them, and opened fire. Only a two-year-old child survived. Police on the other side of the stream killed a seventy-year-old man they found hiding, “almost without stopping in their stride.” Police reached a railroad bridge crossing the stream under which many civilians had gathered. As forty or fifty men climbed out of the stream, the police searched them, taking their money, valuables, documents, and clothes. Police fired on the group from the top of the bridge and both sides of the stream. Popaj watched helplessly from a distance as his brother, Nesim, and his son, Shendet, were the first to be executed. Another prosecution witness, Isuf Zhuniqi, from Bela Crkva, who hid under the railroad bridge with his family, elaborated on Popaj’s testimony. A squad of police, armed with ak-47s and foot-long knives, approached the bridge. They split into two groups, assuming firing positions on either side of the stream. A policeman knocked Shendet Popaj to the ground and put his foot on the young man’s throat. Shendet’s uncle, a doctor, intervened: “Leave us alone. We are simple farmers. We are not KLA.” The prosecutor described what happened next: “Without a word, the police leader opened fire with a short burst from his assault rifle, hitting the doctor in the chest and killing him instantly, then turning his rifle on the young man lying on the ground under his boot. One shot to this young man’s head killed him instantly.” As he moved through the war-torn region, Popaj eventually encountered his wife and parents, who told him that his sons and brothers had been killed with the men at the railroad bridge. He returned to help bury the dead, including personally burying his family. For the next several weeks he became a gravedigger. In Celina alone he buried eighty-four bodies, many burned and disfigured. Popaj left Kosova on 13 May. After the war he returned to find six out of three hundred houses in the village intact. The rest had been burned. Milosevic’s cross-examination allowed Popaj to describe his traumatic journey in his own words. Milosevic: And where did you see them kill these [seventy] people? Popaj: . . . I saw the police going in the direction of the Belaja bridge, where the people were executed there. Five persons of my family were 386   m i l o s e v i c’s l o ya l i s t s

executed there, and the sons of my uncle. There were executed, 40 persons, civilians, who, after one hour, I came back with my wife and we went to the place of the event, and we saw them executed, my sons, Shendet, and here I have the photograph. I have the photograph of my son when I buried him. You see him all in blood. Here are the two sons. . . . Milosevic: Mr. Popaj, I’m very sorry if you lost your sons, but are you sure that they lost their lives during an execution, or did they lose their lives in a war conflict between any kind of warring parties? It’s not even important what particular warring parties. Popaj: If you felt sorry, you wouldn’t have accomplished this deed. But this is true, because I went there. I found eight of them. Milosevic asked how many people were at the bridge. Popaj answered: “Some people—how many people have been all in all, I don’t know, but I know how many of them were killed because I have buried them with my own hands and I have written the names of every one of them when I started burying them.”

Colonel Vlatko Vukovic commanded a battalion on a search-and-destroy mission that began on 24 March. His orders were to support the MUP in destroying “Siptar terrorist forces in the area of Orahovac, Suva Reka and Velika Krusa.” His units passed through Bela Crkva in the early morning of 24 March. He did not actually go into the village, he testified, because his advance intelligence officer said it was quiet. There were no terrorists. Prosecution witnesses testified that the VJ and MUP rolled into the village the next day, 25 March. Vukovic maintained that Bela Crkva was never part of the plan of attack. He went on to deny that the VJ had anything to do with the massacre of sixty-five men and boys at the railroad bridge. The army simply would not have done such a thing, he said. Both Vukovic’s subordinate, Lieutenant Colonel Janos Sel, and his superior, General Bozidar Delic, echoed his testimony. Delic was there and saw nothing going on when he marched past Bela Crkva. Under crossexamination, however, he admitted that the PJP had been in the village. Janos Sel said the same: “I know that parts of the 23rd special police unit were on the . . . left wing of my unit. I don’t know what was happening on the right wing, but I don’t think it’s possible that something like that [the massacre] had happened.” Vukovic could not seem to decide whether he knew what the PJP was doing inside Bela Crkva or was completely ignorant of it. How, Judge m i l o s e v i c’s l o ya l i s t s   387

Bonomy asked, could he have had personal knowledge of what the special police unit was doing? It was very early and dark, Vukovic replied. He would have heard any activity or seen flames. His answer did not please the usually nonintrusive Judge Kwon: “Mr. Vukovic, your answer is not satisfactory at all. Do you know at all what they were doing at the time? And if you knew anything, how do you know what they were doing?” Vukovic responded that all he could know was what he saw or heard himself or was reported to him by his platoon commanders. “Otherwise, we didn’t submit reports to each other, the army to the police or vice versa.” Judge Bonomy lent assistance. “[W]hat we want to know is what was the advance group, the group that was there before you were there, what were they doing. And it seems very difficult at the moment to understand how you would know what they were doing.” Vukovic tried to satisfy the judges by claiming that he had radio communication with and received a report from the PJP. Judge Bonomy recalled the witness’s testimony better than he did, catching him in a blatant contradiction. The judge read Vukovic’s testimony back to him, “‘We did not report to each other, either the army to the police or the police to the army. I’m telling you what I saw. It’s a little hard to explain to you military activities because you’re not a soldier,’ and then you go away on a frolic of your own about military activities being things that we and the Prosecutor can’t understand.” Vukovic approached the prosecutor with patronizing disdain and combativeness, causing Nice at one point to respond, “Please be as offensive to me as you think is helpful to the cause you’re serving, but you will save time if you answer my questions.” It may have played well back home, but not in the courtroom. Judge Kwon read from Vukovic’s prepared statement to the commission: “Here you said, ‘I also do not know anything about whether another unit committed the alleged crime.’ This is different from what you stated earlier today. You said had there been anything, you would have known.” When Milosevic tried his usual ploy to interrupt and help out his witness, Kwon stopped him, and Vukovic replied: “Well, that’s right. And I’m saying to you that while I was in the village of Bela Crkva, there was no action because I would have had to see it and I would have had to hear it. Since I did not hear it or see it, that means that it didn’t happen. I cannot talk hypothetically about whether in three days or five days or in a month somebody committed a crime. War in itself is a crime, and if it was committed, it certainly was not committed on anybody’s orders” (emphasis added). Milosevic explained the discrepancy in Vukovic’s testimony as an error in translation. The troublesome sentence should have read “I do not know that another unit committed an alleged crime.” Kwon, at least, could not 388   m i l o s e v i c’s l o ya l i s t s

see the difference. Given this conflicting testimony, the witness’s contemporaneous record was important. Vukovic arrived in court with his combat reports, though not including some of the most relevant pages dealing with the period from 28 March to 3 April. They had been lost because of NATO bombing, he offered. Selective targeting indeed! Nice turned to Vukovic’s war diary for 25 March: “March was done in the direction Zub-Djakovica-Zrze-Bela Crkva in order to accomplish assignment. . . . Villages Bela Crkva were blocked and cleaned, or cleansed. There were no losses.” All Vukovic could manage in the face of this clear evidence that he had been less than truthful on the stand was “Uh-huh. Yes, that’s what it says.” He later tried to explain that he told his deputy where his command post was, and his deputy dictated the entry. On another try, he stated that the entry was copied from the original order from the brigade commander. The war diary continued with notations of cleansing as Vukovic’s units moved toward the border. March 26: “We are continuing cleansing in cooperation with the MUP until 12.00.” March 27: “At 09:30 cleaning began in three directions.” March 28: “In the course of the day around 2,000 people went in the direction of the border crossing Cafa.” March 29: “In the course of the day around a thousand people went in the direction of the border crossing Cafa Prusit.” March 30: “cleaned Rogovo with Brigade 3 and part of 72nd Special Brigade.” Vukovic added, “[W]e cleaned, or cleansed, the village of Celine, and Nogavac and Bela Crkva of terrorists.” Vukovic’s war diary disclosed that thousands of people were moving toward the Albanian border in the final days of March, as NATO was bombing and the VJ (apparently accompanying MUP) was sweeping through the area in its campaign to cleanse it of terrorists. Nice showed the witness photos of destroyed houses in Bela Crkva. The same sort of damage was done in Celina and Velika Krusa, he said. “What efforts were made to re-house the people who couldn’t live in those houses?” That was not for the army but for civilian authorities to handle, Vukovic answered. Nice pressed on, “You drive by an area like Bela Crkva and you see that, good gracious me, all the houses have been burnt down, presumably you tell someone, and tell us what the civilian authorities did. Did they spring into action to suggest that these people go and live somewhere else, or did they bring them tents, or did they bring them prefabs, or did they kick them out and send them to Albania?” When Vukovic said that he had not seen destroyed houses, Nice reminded him of his earlier, contradictory testimony. It jogged his memory, though he claimed that the houses were fortifications from which the KLA fired on his troops, requiring return fire. m i l o s e v i c’s l o ya l i s t s   389

As for why the population fled toward Albania and Macedonia rather than to another village in Kosova or to Serbia, Vukovic replied that most of the refugees left the country so that they could make it seem as if a humanitarian catastrophe had occurred, justifying the NATO attack against his country. This was too much for Nice. “Let’s see if I understand this. I mean, these people who have had their houses burnt out, who have seen their family members killed, are now engaged in a conspiracy of some kind, is it, because they want to portray a humanitarian catastrophe. Who orchestrated this wonderful conspiracy, Mr. Vukovic? Who was there on the ground, saying do this, do that, and we’ll make it look as though we’re suffering. Who did it?” The witness’s response was to defend his having provided transportation for the elderly and infirm so that they could cross the border at Cafa Prusit. Vukovic was a contentious witness. After asking the judges several times to reprimand him for scornful and inappropriate comments, Nice addressed them: “Your Honours, I really must request the Chamber to preserve the dignity of the Court by stopping this witness in his attempted insolence. It’s been a characteristic of many of the accused’s witnesses. I’ve wondered whether it’s rehearsed because it has a pattern about it. I’m a very tolerant man, but there are limits, and the Court must, in my respectful submission, stop witnesses doing this.” Judge Robinson’s intervention reflected his mild management style in a case requiring a heavier hand: “The Chamber is monitoring the witnesses. Mr. Vukovic, just answer the questions. I’ve warned you before: Leave aside the comments, just answer the questions.” The presiding judge often seemed unhappy with Nice for trying to invoke the court’s power to keep witnesses in line. Milosevic’s military witnesses appeared to have one thing in common: they were not in any position to see events about which they testified. They relied on statements of their subordinates, who were not available for crossexamination. It is unknown whether Milosevic sought eyewitnesses and was turned down or rather believed that his top brass would define reality as he did, making actual witnesses unnecessary.

Milosevic’s Kosova defense case was chaotic, poorly managed, and poorly executed. Comments from the judges indicated that they were as unimpressed by the evidence as they were frustrated at its manner of presentation. Milosevic’s focus on putting forth an affirmative case against NATO and the West crossed over at times into a legal defense to the charges. When he accused NATO of bombing civilian structures that the prosecution alleged 390   m i l o s e v i c’s l o ya l i s t s

Serb forces had destroyed, it was a legitimate defense to the charges that forces under his control had destroyed them. Nevertheless Milosevic called a number of witnesses who presented the biased worldview of nationalist Serbs that the Albanian people were nothing but criminals and aggressors, while Serbs were entirely victims, including victims of genocide by the Albanians. Though irrelevant, he presented evidence on responsibility for Yugoslavia’s breakup and the wars that followed. Milosevic marched an array of witnesses through the courtroom who eagerly lied, described ludicrous, incredible scenarios, and presented testimony so similar that it could only have been scripted. The parade of implausibility ranged from the community college professor who implied that Bill Clinton was worse than Hitler to the Macedonian medical personnel and others who insisted that the mass exodus of nearly a million Albanians had been staged by the KLA, while refugees faked tears, fear, and injuries for television cameras. A series of army generals demonstrated that their loyalty to Milosevic trumped any regard for truth or embarrassment over being caught in lies and contradictions. Milosevic’s inept defense prompted the judges to intervene more often than at any time to date to question the witnesses over blatantly inconsistent or nonsensical testimony. Rather than call witnesses with direct knowledge of events, Milosevic introduced videotapes of interviews with them, preventing cross-examination by the prosecution. When the prosecution offered statements hurriedly secured from some of these pseudo-witnesses claiming that the video interviews had been given under duress, the court would not accept the statements as evidence, while still allowing the prosecution to use them in questioning defense witnesses. Particularly because the court did not issue a judgment that would have weighed the credibility of the evidence, these videos taint the evidentiary record. The prosecution’s adept handling of defense witnesses made for some startling disclosures. Chief among them was the Yugoslav army’s manufactured evidence intended to shield Milosevic and, not least, the army itself, from criminal liability. After the prosecution’s disclosure of incriminating documents, the court was left with a view of military officers sitting around a table agreeing on a fabricated record of events long after they occurred. In addition to creating documents, Milosevic’s witnesses revealed that the military had also been intentionally withholding incriminating documents long sought by the prosecution, such as records of daily military activity during the war. In a litany so uniform that it sounded rehearsed, the generals described a highly professional army, insistent on assuring that its troops folm i l o s e v i c’s l o ya l i s t s   391

lowed the laws of war. None of the higher-ups knew of any violations. When confronted with the testimony of Kosova Albanian victims they denied it, insisting that it was fabricated even when they had not been on site and could not possibly know from personal experience whether the testimony was fabricated or not. Quite simply, they told the court, the army and police would not do such things. They offered no specific evidence to counter the prosecution’s quite specific evidence by Albanian survivors of mass killings, destruction of villages, and forcible expulsion. The whole charade prompted the judges to reprimand Milosevic, with no little frustration, for his inability or unwillingness to put on a proper defense. The insolent attitude of Milosevic’s witnesses, as well as their clearly fabricated testimony, demonstrated their contempt for the court, the prosecutor, and the entire proceeding, leading Nice to suggest that their insolence was a defense tactic. It did not impress the court, but likely entertained Milosevic’s audience back home. One of the greatest benefits to the prosecution from Milosevic’s defense case was the opportunity to revisit the Joint Command, to present documents confirming its existence, and to get Milosevic and one of his witnesses to do so as well, though they maintained that the Joint Command was a coordinating body only. It was in fact Milosevic’s cover for direct control of the army and police, enabling him to oversee implementation of his war plan. Another important plus for the prosecution was obtaining long-sought documents from Milosevic’s witnesses, supporting the prosecution’s contention that the Kosova operation was a well-planned ethnic cleansing campaign. Milosevic again brought the trial to a standstill when he was too ill to attend and his witness refused to attend in his absence. A sentence for contempt was suspended owing to the witness’s ill health. Nevertheless, Milosevic managed to stay healthy for nearly the next eight months, evidencing his power to adjust the trial schedule to suit him by making himself ill or not. The time allotted for Milosevic to present his case was drawing to a close, and he had not yet begun to address the Bosnia and Croatia indictments. He had taken over a year on Kosova. By this point the court had adopted a hands-off approach, leaving it to Milosevic to use or waste time as he chose, with occasional reminders that the end was drawing near and he had a much larger case to answer. Milosevic appeared certain that the court would grant him more time, as it had in the past. Unknown to the court, he was also contemplating an early exit to Moscow. In the end he achieved an early exit but never got to Moscow or out of his cell in Scheveningen.21

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C r o at i a a n d B o s n i a: A C a s e o f S e l f-D e f e n s e? Chapter 15

Milosevic Grapples with Defense

With only weeks to go before the deadline ending his case, Milosevic began his defense to the Croatia indictment. He used a familiar tactic: accusing those he was accused of harming. According to Milosevic, Franjo Tudjman and his fellow Croats were the initiators of a joint criminal enterprise to ethnically cleanse non-Croats, predominantly Serbs, from Croatia.1 Even if true, this was not a defense to the crimes of which Milosevic was accused. At the end of January 2006 Milosevic called Branko Kostic, Montenegrin representative to the Yugoslav presidency in 1991 and 1992, whose machinations had helped him gain control of that body. Kostic was followed by Marko Atlagic, a Serb member of the Croatian Assembly, and Slobodan Jarcevic, foreign affairs minister for the first self-declared Serb autonomous region in Croatia (RSK). These three witnesses and Vojislav Seselj, who testified in late summer and fall 2005, constituted the entirety of Milosevic’s defense to the Croatian indictment (other than cross-examination of prosecution witnesses) before the trial so unexpectedly ended.2 By means of leading questions and comment, Milosevic told his story through them without swearing an oath to tell the truth, as would have been required had he taken the stand to testify. They were mostly sycophants, a precondition for rising to power in Milosevic’s Serbia and its satellites. That their answers were strikingly similar was not an accident to those who knew Milosevic well. It would have been shocking if Milosevic had decided to play by the rules of an institution he neither respected nor recognized. He was fighting for his freedom, but far more for his

place in Serbian mytho-history. He would do everything he could, legal and illegal, to assure that he controlled it. The accused, though a man of great influence and power with all Serbs, had no plan for a Greater Serbia, his witnesses said. He merely acted to protect his Serb fellows who were facing the re-emergence of Croatia’s Second World War fascist state. The Serbs in Croatia, they maintained, did not initiate any actions against their Croat neighbors, but merely responded to provocations. “When Croats formed an ethnically based political party (HDZ), Serbs felt they must create one too (SDS). As Croats expelled Serbs from areas predominantly populated by Croats, Serbs reciprocated. After all, displaced Serbs needed someplace to live. When Croats formed a government around the super-nationalist Franjo Tudjman and proceeded to demote Serbs from their constitutional status as a constituent nation to that of a minority with fewer rights, Serbs followed suit, establishing the RSK, electing a president and installing an assembly. It only took up arms in retaliation after Croats attacked Serbs. The JNA separated warring parties to reestablish peace, not to side with Serbs. Whatever Serbs had done was selfdefense; Milosevic supported them to save them from genocide. While some individuals perpetrated crimes, it happened on both sides as it does in any war. Where the Yugoslav army was in charge, mechanisms were in place to prevent crimes and punish miscreants.3 Milosevic was the peacemaker, his witnesses testified, sought by international negotiators because of his stature and influence on fellow Serbs. He did not stoke the fires of war as the prosecution contended. In its bare outlines, this was Milosevic’s answer to charges he promoted and supported Croatian Serbs to take power in nearly 30 percent of Croatia by violently ousting non-Serbs. Milosevic had difficulty formulating a defense of self-defense. Marko Atlagic, for example, insisted that Serbs had committed no bad acts. But if Serbs had done nothing wrong, there was no reason to raise self-defense, which comes into play only if a person has committed a crime. Judge Kwon felt that self-defense would be an appropriate defense if Milosevic was admitting that he assisted the Krajina Serbs because they were under attack. The problem in Milosevic’s approach with Atlagic was the lack of his evidence’s linkage with any crime charged. As Judge Robinson explained, “I’m concerned because we have here a witness who doesn’t know of any incidents that could even be described as self-defence and is telling us about events in the Parliament and other circles of authority in Croatia which he now speculates may have caused fear or may have justified fear among the Serbs, but we’ve had no evidence of actual fear or actual behav394   A Ca s e o f S e l f-D e f e n s e?

iour that results from that.” He instructed Milosevic, “You need to appreciate that evidence that the Serbs were discriminated against by Croatia will not provide an answer to the charges in the indictment.” Milosevic insisted that the charges had nothing to do with him. “What, then, are you seeking to establish through the evidence that you are leading?,” Judge Robinson asked. The accused tried to explain. He did not claim that Serbs in Croatia did not commit crimes, but that they had “absolutely nothing to do with the policy and politics of the Krajina leadership and especially not the policy and politics of Serbia.” Kay suggested, “the accused needs to understand he can use the good points he obtained in the Prosecution’s case—.” Judge Bonomy interrupted to add, “And many of them—many of them, I may say. . . . and he shouldn’t underestimate what has actually been gleaned from cross-examination.” Judge Robinson agreed. Milosevic was clearly confused about how to mount a defense, despite a year’s experience with the Kosova indictment. He asked general questions, eliciting general answers which were of little use to the judges. He produced written orders prohibiting violations of international law to prove that there had been no violations, but no evidence that the orders were followed. Repeatedly witnesses made unsupported assertions. Pressed by the court, witnesses claimed that the source of their knowledge was reading material, television, the internet, personal impressions, information from colleagues, their professional position, common knowledge, and logic—a particular favorite. For example, Branko Kostic testified that he knew Milosevic had no control over the media because if he had, the media would have broadcast information on the expulsion of Serbs from towns in the Krajina. Since Kostic maintained that there were no such broadcasts, Milosevic lacked control. Kostic did not claim any personal knowledge of Serbian media; he relied on logic as the basis for his evidence. In a trial, logic is more appropriately reserved for argument. The accused also had a habit of reading through the indictment and asking his witness if various accusations were true. As might be expected, the witnesses dutifully answered “no.” This was no more useful to the trial chamber than a statement supported only by logic. Milosevic’s defense witnesses for Croatia were not an impressive lot. Slobodan Jarcevic, the former RSK foreign minister, declared, “Croats and Muslims are evil. The Muslims are not real Muslims anyway, but ethnic Serbs who converted to Islam.” He also accused the OSCE chairman, Ambassador Knut Vollebaek, of stealing his bag at the airport after a round of negotiations in Norway. In all seriousness, the witness equated Serb conversion to A Ca s e o f S e l f-D e f e n s e?   395

Catholicism with genocide.4 In his mind anti-Serb graffiti also belonged in that category when it was written on churches and kept people from attending out of fear. According to Jarcevic, the Serbs did not force Croats to leave Serb-dominated parts of Croatia; rather, the Croatian government organized their “withdrawal.” Branko Kostic, like Jarcevic, saw Croats committing genocide against the Serbs in curious ways. Croatia’s change of Serb status in the constitution from constituent nation to minority was genocide, he asserted. Publicly he had compared Tudjman’s government with Hitler’s regime in Croatia during the Second World War. Judge Robinson reprimanded Kostic for the intemperate language he used in equating forced deportation with genocide. It had become second nature after years of extremist propaganda. Kostic, like many others, now lived in a fictional universe. Milosevic’s witnesses unwittingly assisted the prosecution. After insisting that the accused did not direct or influence the RSK in negotiations, Jarcevic contradicted himself when asked whether Vollebaek was correct when he testified that Milosevic had leaned on the Krajina Serbs to get them to negotiate. “I do believe that he went to see you,” Jarcevic responded, “and he most probably consulted you or informed you of his intentions, and it would be quite mad to suppose that you did not agree to have us negotiate.” Jarcevic’s testimony gave the prosecution an opportunity to play an intercepted telephone call of 3 May 1995 between Milosevic and General Momcilo Perisic, JNA chief of staff, in which the accused, furious over Martic’s shelling of Zagreb, ordered the general to see it stopped. “Call Celeketic and . . . forbid him to do it and tell him not to even think about it.”5 The witness testified that the shelling did stop, though he could not recall whether it was before or after Milosevic’s call. Regardless, the link was made: from Milosevic to the JNA chief to the head of RSK forces. Atlagic was less helpful, resisting all prosecution evidence that the prosecutor addressed to him. The prosecution relied extensively on the BBC documentary Death of Yugoslavia, in which many of the main Serb figures spoke freely before the camera about their illegal actions. In a clip shown to Atlagic, General Petar Gracanin of the JNA admitted to helping the Krajina Serbs erect barricades against Croatian police: “I taught them to [put up barricades] and to keep guard at night with any weapons they had.”6 Despite hearing Gracanin on tape, Atlagic refused to believe what he heard. In another clip Milan Martic relayed how the JNA took Kijevo, a Croatian village blocking access to Serb villages. He gave local police an ultimatum: “I demanded that the police quit their post. When they refused, Colonel Mladic 396   A Ca s e o f S e l f-D e f e n s e?

ordered the regular Yugoslav army into action. It was the first time they had brazenly fought for the Serb cause. They pounded the Croatians into submission. In Kijevo, every house was fired on with all . . . weapons of the unit. We did not destroy a single house simply for the sake of it. Once the army was done, the local Serbs walked in. I think that we were far superior to the Croats. Of course a few houses in that clash was set fire to as things go, by the artillery. The Yugoslav flag was raised as the army seized Croat town after Croat [town].” By any account this is startling evidence of JNA involvement on the Serb side in the Croatian conflict at a time when Milosevic contended that the army was neutral, its involvement limited to separating warring sides. Atlagic would not confirm Mladic’s participation, adding that he knew each civilian in Kijevo was armed, though he failed to say how he knew. He also maintained that Croat irregulars, not the regular police, defended Kijevo. The court had difficulty with the BBC documentary, because the translation was often wrong and had to be redone by ICTY interpreters, and because the film had been edited by people who were not present. Nevertheless, the prosecution used it as a powerful visual and auditory aid. Milosevic’s Frivolous Witnesses

In the early 1990s Branko Kostic was one of Milosevic’s chosen. A member of the federal presidency representing Montenegro, he supported Milosevic’s wishes even when they clashed with Montenegro’s. On the stand he insisted on his independence, searching for issues where he had differed with the accused, of which there were few. Kostic was one of the most frustrating witnesses for the court and the prosecution. He seemed incapable of answering any question asked by the judges or the prosecutor, veering into long tangents of little relevance. His remarkable unresponsiveness provoked Judge Bonomy to intervene: “Mr. Kostic, you are evading the question. There doesn’t seem to be within you the ability to talk straight on anything.” In addition to knowing little about subjects on which the accused questioned him, Kostic had problems with his memory—noticeably during the prosecutor’s cross-examination. Borisav Jovic wrote of a meeting on 8 August 1991 that Kostic attended with him, Kadijevic, Adzic, and Milosevic, at which the accused “insisted on heightening combat readiness” and expelling Croats and Slovenes from the military. Kostic could not remember this meeting, he told the prosecutor. Nor could he remember a subsequent meeting on 24 September 1991 with the same players minus Adzic, at which Kadijevic proposed, “Serbia and Montenegro should declare that the military A Ca s e o f S e l f-D e f e n s e?   397

is theirs and assume command, financing the war, and everything else.” The general added, “all the generals on the General Staff, except one, are Serbs, and they all support this approach.” Kostic denied knowing about reports of crimes, though on direct examination he recalled receiving regular JNA briefings and touring the war zones. In explanation, Kostic said that these statements had been “incautious” of him. Still, he said, “I wasn’t able to know everything.” When the prosecutor Uertz-Retzlaff asked about a letter of protest from Croatia to the federal presidency over an incident when the JNA fired on the villages of Erdut and Bogojevci, Kostic’s memory again failed him. Croatia sent complaints all the time, he said. “You can’t expect me to know about each specific instance now, 15 years after these events.” Nor did he recall a letter dated 25 October 1991 from UNESCO protesting the JNA’s attack on the protected World Heritage site of Dubrovnik’s Old Town. The testimony of Milosevic’s closest confederates was remarkable for their asserted ignorance of atrocities against civilians and POWs. Many incidents were reported in the press, and Croats as well as federal officials made formal and informal complaints. If these high officials were telling the truth, the insularity and denial mechanisms of Milosevic’s coterie enabled them to set policies causing widespread human suffering without experiencing guilt or remorse. In substantive matters Kostic also gave answers that were hard to believe, given his high position during the war. When Uertz-Retzlaff questioned him about carrying out Martic’s requests for material support for the police, the provision of JNA officers to lead their budding military, and support in dealing with Adzic and Kadijevic to assure that JNA tanks remained in the RSK, Kostic responded that he could not say to what extent Martic’s requests had been met. Judge Bonomy found that odd. “Sorry. Sorry. You’ll need to help me on this one. You’re in charge of the army at this point, and you don’t know if this is what actually happened. I find that strange. Perhaps you could clarify it.” When further answers provided little definitive information about the army, Judge Bonomy said that Kostic’s professed ignorance made him question the witness’s previous “authoritative” answers about the JNA. While Kostic was not all that helpful to Milosevic’s case, he did bolster the prosecution’s. In March 1991, after civil upheaval in the streets of Belgrade, the JNA top brass unsuccessfully moved to have the federal presidency declare a state of emergency, in essence a military coup that would have allowed the army to declare martial law and assume dictatorial powers throughout Yugoslavia. The move failed when Bosnia’s representative, Bogic 398   A Ca s e o f S e l f-D e f e n s e?

Bogicevic, a Serb, refused to go along with the four Milosevic loyalists on the presidency to make a five-vote majority. This reportedly sent Milosevic into a rage, resulting in his famous declaration on RTS television that “Yugoslavia has entered the final stage of its agony.” After losing the vote the Milosevic bloc resigned from the presidency. Milosevic ordered mobilization of the MUP reserve and the urgent establishment of additional police. Judge Bonomy was curious about what the four hoped to accomplish by resigning. When Kostic could not explain their rationale, the judge noted that failure to pass the emergency measure left the status quo in effect. Why, he wondered, would half the members in a democratic process walk out, unless they were intent on precipitating a breakup of the state? The witness answered that some of the presidency members eventually returned while replacements were secured for others (those whose loyalty to Milosevic had been put in question). It was a stratagem, not a principled action. The JNA Supreme Command staff sent a letter to the presidency expressing displeasure over its members’ failure to take the desired action, adding that they could no longer be responsible for the continued illegal arming of citizens or their organizing in military fashion. This also disturbed Judge Bonomy. “What you seem to be saying is that this is acceptable, for an army to make a statement like this which expresses dissatisfaction with a decision of its own Supreme Command. Now, if you had been one of those who was against a state of emergency, would you not have regarded such a statement as an act of disloyalty?” In Orwellian fashion, Kostic replied that on the contrary, the statement showed the JNA’s loyalty to its civilian command. He added that had he been in Kadijevic’s shoes, he “might have taken steps on that day, bearing in mind that in a country of democracy, such as Greece, for example, the army did take steps in critical moments, and for practically seven years the country was governed by a military junta. But there was no civil war in Greece and democracy returned to Greece in a peaceful way later on. So I don’t know whether this solution on my part would have been a good one, but that is what I would have done myself most probably.” In the fall of 1991 Kostic was instrumental in the political coup that gave Milosevic full control of the (rump) federal presidency. As vice-president he called an emergency presidency meeting in Belgrade. Assisted by the JNA in preventing President Mesic from leaving Zagreb, the members present passed a declaration that the country was facing an imminent threat of war.7 The problem was that at least two of the members did not know what they were voting for. Kostic admitted to tricking them. In the film Death of Yugoslavia Kostic said that for the presidency meeting of 30 September 1991 the A Ca s e o f S e l f-D e f e n s e?   399

Milosevic camp prepared an eight-page document, “which included some provocative stands which we knew would provoke many objections, both by Tupurkovski [of Macedonia] and Bogicevic. . . . And towards the end of that document, we placed in the broader text in a fairly unnoticeable manner that formula . . . saying that the country was facing an imminent threat of war.” In a curious (mis)understanding of the rule of law, he added, “So we really did use a sort of, if I can say so, political trick, small political trick, but that wasn’t the first or the last time such methods were resorted to. But we did this because we wanted to remain within the limits of the constitution.” Before the court Kostic acknowledged his statement to the BBC, admitting, “[T]hese were moments of honesty.” The prosecutors must have done a few high kicks. Kostic had just confirmed their position that the declaration of an “imminent threat of war” was illegal, because the presidency did not knowingly approve it. The rump presidency and everything it purported to do had no legal basis. As a result of the “imminent threat of war,” the presidency’s emergency powers went into effect, allowing it to adopt laws (otherwise the province of the assembly) and to meet without a quorum. Any decision could be passed by a simple majority of those present. It passed a new requirement that members live within two hours of Belgrade, so that they would be available during the emergency, according to Kostic. While the witness asserted that it was still possible for members from Zagreb and Ljubljana to attend, Mesic testified earlier that the JNA had prevented him from flying. Also, he might legitimately have felt some fear of being in Belgrade at that time. Those absent could not receive meeting minutes except in Belgrade, since the rump presidency deemed other communication methods unsafe. With these changes Milosevic gained full control over the federal presidency, Kostic’s avowal of independence notwithstanding.8 Under the new Serbian constitution the Serbian assembly had power to select Kosova’s and Vojvodina’s federal presidency representatives. Milosevic’s political party controlled the assembly majority and Milosevic controlled his party, thus allowing the accused to appoint three presidency members. Because of Serbia’s stronger position in relation to Montenegro, Milosevic essentially dictated Montenegro’s federal representative as well. The presidency was the JNA’s supreme command, though Kostic said that it could do nothing but adopt the Army General Staff’s order for partial mobilization, which it did on 4 October 1991, shortly after declaring the imminent threat of war. He explained that the JNA troop level was down because Croatia, Slovenia, Macedonia, and Bosnia no longer sent recruits. Earlier he 400   A Ca s e o f S e l f-D e f e n s e?

had testified that the mobilization flowed from the army’s assumption of power. Kostic’s testimony was significant for the prosecution because it supported their contention that Milosevic controlled the JNA at least by the beginning of October 1991, through de facto control of the rump presidency constituting the JNA supreme command. For the prosecution it was an improvement on testimony from its own witness, Aleksandar Vasiljevic, former head of military intelligence, who said that Milosevic did not secure total control until February 1992. In his diary, however, Borisav Jovic went further. By 5 July 1991, when he first met with Kadijevic, Jovic wrote that Milosevic was able to exercise considerable control over the JNA through its leaders. At least from August, the military leaders Kadijevic and Adzic formed part of “the Six,” who met regularly to advance the agenda of the Serb nation as Milosevic envisioned it, not that of Yugoslavia.9 In testimony recalling that of Jovic, his colleague on the rump presidency, Kostic described Milosevic as the most powerful and influential man among Serbs, inside or outside Serbia. Where he lacked institutional power, as with the JNA or the federal presidency, he had de facto power. Milosevic now faced the dilemma of how to present himself as the peacemaker with the greatest power and influence, while arguing that he had no power over Serbs outside Serbia. Milosevic’s dilemma was a gift to the prosecution, as reflected in Kostic’s testimony: Mr. Milosevic, from the 27th of April 1992, and Mr. Bulatovic, as president of Montenegro, represented the Supreme Defence Council pursuant to the new constitution of the Federal Republic of Yugoslavia. But up until then, in formal terms and in legal terms, Mr. Milosevic had no authority or competence. Whether de facto he did have any, in practice, that is, I can say he did in practice as much as he had political authority, and he had quite a lot of political authority, political standing. And as you were able to notice, not only did he have political authority and the force of that political authority in Yugoslavia and in Serbia and in Montenegro and in many areas, but he enjoyed that political authority also vis-à-vis many international factors . . . in the international community, which, when they concluded agreements with the SFRY Presidency or, rather, with Mr. Kadijevic and with Mr. Tudjman as with two parties, two sides who were in conflict, they insisted that Mr. Milosevic appear on the scene, although . . . there was no legal authorization. But thanks to his political authority A Ca s e o f S e l f-D e f e n s e?   401

and political influence, they thought he could contribute to quelling the situation. (emphasis added) In an intercepted telephone call played in court, Kostic spoke with Karadzic. They discussed the need to take Ploce (a large port used by the Yugoslav army and navy but under Bosnian control) and to demilitarize the entire area around Dubrovnik. Ploce was strategically significant, as it would provide the Serbs with their only outlet to the sea. The conversation demonstrated several important points: Karadzic was involved in war planning about Croatia as early as November 1991, though Bosnia was not at war and the RS did not yet exist; the two men were planning aggression rather than an intervention to protect citizens or an army barracks; and as war raged in Croatia, one of Milosevic’s men on the federal presidency plotted with a Bosnian Serb politician about how to use the JNA to obtain Croatian territory—from Dubrovnik and its surroundings all the way to Ploce on the sea and to the Neretva River, a large area indeed. Kostic testified that the JNA was already on the territory of Dubrovnik with thirty thousand troops, though he could not understand why there were so many for a small operation. His testimony corroborated that of the prosecution witness Nikola Samardzic and others.

Vladislav Jovanovic was Serbia’s preeminent diplomat throughout the 1990s, serving as foreign minister of Serbia, the SFRY, and the FRY before becoming the FRY’s UN ambassador in August 1995. Under the watchful eye of Serbia’s legal counsel, who was present in court, he testified on behalf of the man he served for so many years. Despite his presence among Milosevic’s closest allies, he appeared amazingly ignorant of what went on; nor was he curious, seemingly content with what Milosevic and his inner circle chose to pass on. Jovanovic testified that he, as foreign minister, knew nothing about the JNA’s siege of Dubrovnik until Tudjman angrily raised the issue at the Hague Conference about three weeks after the attack began. General Kadijevic, he recalled, denied the accusation. Asked whether he investigated further, he said he had asked Milosevic, who assured him that Serbia had not attacked Dubrovnik.10 Despite extensive television coverage that showed Dubrovnik burning, Jovanovic merely “waited for the truth to come out.” He reacted similarly to information from an undisclosed source in 1995 that Bosnian Serbs were attacking civilians in Srebrenica and that Dutch UNPROFOR troops were helpless to stop them. “Thousands of people died at Srebrenica, 402   A Ca s e o f S e l f-D e f e n s e?

Mr. Jovanovic,” Nice stated. “You were the foreign minister. What efforts did you make?” Jovanovic replied, “I was waiting for the matter to be clarified, to be confirmed from several sources so that I could take it as an indisputable fact.” He claimed ignorance of Serbia’s financial support for the Bosnian military and said that he had been surprised to read Milosevic’s post-arrest statement from 2000 about how extensive it was. Perhaps because his witness knew so little, Milosevic gave him the answers he wanted through leading questions. He read from books, newspaper articles, and his own speeches, soliciting Jovanovic’s agreement. One question prompted Judge Bonomy’s chastisement: “I regard any answer that’s given to this question as valueless because it’s the most leading question, I think, that’s ever been addressed in the course of this trial; an absolutely pointless way of conducting this examination.”11 Milosevic returned to wellcovered ground, examining Jovanovic about the cause of the wars. The judges had heard enough on this peripheral issue and directed Milosevic to ask the witness about something more relevant of which he had firsthand knowledge. Milosevic spent considerable time reviewing the negotiations conducted in 1991–92 under European Community auspices, attempting to show that Serbia favored a peaceful settlement to Yugoslavia’s breakup. He put forward his position that the FRY was the successor state to the SFRY, from which the other republics seceded. This position was consistent with his other one, often stated, that the Serbs favored the existing Yugoslav state, since it was the only entity in which all Serbs lived together. Milosevic insisted that Serbia had no territorial ambitions. Yet according to considerable prosecution evidence, the accused had not given up the goal of joining Bosnian Serb territory to Serbia, though he appeared ready to abandon the Croatian Serbs. When he later agreed to the Vance-Owen peace plan, which provided for cantonizing a separate Bosnian state, he understood that the territorial configuration was only temporary. Nice confronted Jovanovic with his own statement to this effect in a meeting of the Council for Harmonization:12 “We have to make a conclusion from it that the community and conditions do not allow the ages old dream of union of all Serbs in one Serbian country to become true. We have to move in phases towards that goal.” At an earlier council meeting, on 11 August 1992, Dobrica Cosic, the famed Serbian author credited with helping to revive Serb nationalism, spoke similarly: “In my opinion, we have to reconcile ourselves and finally agree that the achievement of our main political goal, living in one state or in the federation of states, is the long-term aim which A Ca s e o f S e l f-D e f e n s e?   403

could be achieved only step-by-step or gradually.” The prosecutor concluded: “Mr. Jovanovic, it couldn’t be clearer from all the passages I’m putting to you that this was your underlying intention and it was shared by everyone else.” The witness insisted that the only aim was to pacify the frustrated Bosnian Serb leaders. When Karadzic expressed skepticism that unification could be accomplished later, Milosevic reassured him, “We have beat them at their game. We have outwitted them if we put the matters to a later phase. . . . This is what this is all about.” Milosevic played an intercepted conversation between the JNA chief Kadijevic and President Tudjman, discussing a ceasefire and the deblocking of JNA barracks. Prompted by the accused, Jovanovic testified that the conversation showed the JNA and Croatia to be the only parties to the conflict. He explained Milosevic’s participation in international talks as that of a peacemaker to whom international mediators turned with the assurance that he would always give “preference to political solutions rather than military solutions” and advocate “solutions that would secure the minimum interests of all three constituent peoples.” Jovanovic suggested that the Bosnian Serbs were incapable of dealing with the complexity of negotiations and reacted too emotionally, requiring Milosevic to step in. The problem with Jovanovic’s testimony was that Milosevic gave it. The witness had little to say from his own experience and his general conclusions were useless as evidence. The witness claimed that Serbia and Milosevic accepted all five peace plans concerning Bosnia: the Cutiliero plan, the Vance-Owen plan, the Owen-Stoltenberg plan, the EU Plan of Action, and the Contact Group plan. The Bosnian Serbs rejected Vance-Owen despite Milosevic’s personal advocacy, he said, because it allotted them considerably less territory than they had taken through fighting. Despite his failure to persuade the Bosnian Serbs, Milosevic’s efforts on behalf of Vance-Owen launched him into the role of peacemaker with international negotiators. His interest was to end the debilitating sanctions that the UN had imposed on Serbia in the spring of 1992 for its role in dismembering Yugoslavia and bringing about the Bosnian war, both of which Milosevic strenuously denied. He also believed that the Bosnian Serbs had won as much as they could on the battlefield and that it was time for the political process to legitimize its aggression. Though Milosevic focused Jovanovic’s testimony on the purported intransigence of the Bosniaks in seeking a political settlement, the real obstacle was the Bosnian Serbs. After rejecting Vance-Owen, in 1994 they rejected the Contact Group plan, under which they would have received 49 percent of Bosnia, leaving the Muslim-Croat federation with 51 percent—not a bad 404   A Ca s e o f S e l f-D e f e n s e?

“reward” for aggression against a UN member state.13 Milosevic broke off relations with the RS and closed the border with it, stopping all trade except in humanitarian goods. Prosecution witnesses testified that the blockade was quite porous; goods continued to flow. Jovanovic blamed premature recognition of Croatia for failure of the Carrington plan, stating that it removed Croatia’s incentive to negotiate. Yet it was Milosevic who denounced the plan and strong-armed Momir Bulatovic, then president of Montenegro, into following suit. Nice produced a statement by Milosevic at a meeting of the Council for Harmonization reflecting his reason for opposition: “I didn’t have any reservations with regards to [autonomy rights for Croatian Serbs within Croatia], but an explanation how to avoid, with what arguments that the same right is requested for the Albanians, that is the problem. This is the thorn in our argumentation.” Jovanovic denied that this was the reason for the opposition. Instead, the plan would have legitimized Yugoslavia’s dissolution rather than its continuation in the form of the FRY. Milosevic also opposed the plan because it divided Yugoslavia along territorial, not ethnic, lines. Milosevic questioned Jovanovic about a report by the UN secretary general, dated 30 May 1992, in which he commented on the transition of forces as the remnants of the JNA returned to Belgrade and were transformed into the VJ. Milosevic quoted the report: “[I]t is also clear that the emergence of General Mladic and the forces under his command, . . . independent actors apparently beyond the control of JNA, greatly complicates the issues raised in paragraph 4 of Security Council Resolution 752” (emphasis added). The UN report roused Judge Robinson, a former UN diplomat: “[T]he passage that you have cited from the Secretary-General’s report is very, very important to your case. It’s very, very strong evidence. Although it says that the forces under his command, that is General Mladic, were apparently beyond the control of the JNA, the word ‘apparently,’ of course, is significant, but I would suggest that you try to get a witness other than this witness who can substantiate what the Secretary-General says in his report. Even without that substantiation, as a report from the Secretary-General, I would attach great weight to it, but I think your case would be immensely strengthened if, for example, you could secure the authors of the report.” He never did. The secretary general, Nice later suggested, was expressing uncertainty that neither Belgrade nor the Bosnian Government had control of Mladic during the transformation of the JNA into the VJ and VRS. Certainly the Bosnian government did not control the commander of the military force rebelling against it. Whether Belgrade did or not, the illegitimate RS assemA Ca s e o f S e l f-D e f e n s e?   405

bly officially appointed Mladic head of the VRS when it was established on 12 May 1992. Jovanovic testified that Mladic and the VRS were wholly independent and under no outside influence at that time. Asked if there were outside influences or control later, Jovanovic said he had no direct knowledge. When he started to give his impression, the prosecutor objected. The court allowed him to testify about his knowledge of Milosevic’s reaction: “I know that on the occasion of later attacks of the army of Republika Srpska at some targets in Bosnia-Herzegovina, President Milosevic was very surprised and very bitter. For example, the mountain of Igman and Bjelasnica near Sarajevo in 1993, then the shelling of Gorazde in 1993, then the attack on Srebrenica in 1993. He was embittered when he learned that that happened, and he was outraged that it happened. That, in my opinion, is proof that the forces of Republika Srpska were not under his control.” According to prosecution evidence, Milosevic had enough control or influence to stop Mladic in 1993 and 1994 from major attacks against the safe areas. Jovanovic also admitted that Milosevic made a major contribution to the release of 282 UNPROFOR hostages whom Mladic captured in 1994, despite strained relations with the Bosnian Serbs. And as Nice noted, Milosevic continued to finance the Bosnian Serbs to wage war in Bosnia. The UN Security Council found that the FRY had significant control over the Bosnian Serb leaders. It was the basis for imposing what one author called “draconian” sanctions against the state in 1992.14 Indeed the Security Council passed a resolution on 16 April 1993 directing the FRY to “take all measures within its power to prevent the commission of the crime of genocide.”15 Nice confronted Jovanovic with notes from a meeting of the Council for Harmonization on 18 August 1992 which he attended. Milan Panic, FRY prime minister at the time, addressed those present: “The problem is that we’ve been accused for the war in Bosnia and Herzegovina, that we support the war in Bosnia, and that we left weapons for them to fight; that we support Karadzic financially. We spoke here about the ethnic cleansing.” Panic went on to insist, “We cannot get rid of it. This afternoon I received the following information—ethnic cleansing has begun: 15,000 Muslims from Sanski Most were given eight hours to leave their homes and make twenty kilometres to Jajce in order to reach the Muslims. This information was received from the United Nations. They asked me and said that I should stop it.” When Nice asked where the court might find his objections to the ethnic cleansing described by Panic, Jovanovic lamely said that the state and republic governments “frequently condemned ethnic cleansing.”

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Nice challenged the witness with the ICJ’s interim order to the FRY from 1993 (in response to Bosnia’s legal complaint) that the state must do everything in its power to prevent genocide against the Bosnian Muslims and “in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide.”16 The ICJ order (and the Security Council resolution), Nice argued, gave the FRY notice of how the international community viewed its actions. He asked Jovanovic whether the accused ever raised the possibility of withdrawing support from the RS in response to the ICJ order. He did it a year later, the witness replied, and in the meantime “waged a Titanic struggle with them to get them to accept each of the plans of the Contact Group.” Despite notice of Serb crimes in Bosnia, including the possibility of genocide, Milosevic continued financing the RS and its army, Nice pointed out. The witness responded, “In that three-sided civil war, each side had its supporters, financially and otherwise, and they were all to a greater or lesser extent involved in a series of crimes,” but attention was focused only on one side. Serbia and the FRY supported the RS, Jovanovic agreed, “politically, financially and diplomatically.” He claimed to have known nothing of military affairs. Milosevic raised doubt about his control of Mladic by introducing through Jovanovic the UN report of 1992 in which the secretary general expressed uncertainty over his ability to control Mladic. Also challenging Milosevic’s control was Jovanovic’s claim that Milosevic reacted angrily in response to VRS attacks on Gorazde and Srebrenica in 1993. The question remained whether the court found this credible in light of the prosecution’s argument that the UN and the ICJ directed Serbia to restrain the Bosnian Serbs. For the most part, despite his position as the FRY’s former foreign minister, which should have made him privy to state decision making, Jovanovic provided little direct evidence. Milosevic’s questioning concerned peripheral issues, focusing on his political case against NATO, the United States, and Germany. He read from books, newspapers, and speeches and put forward conclusions, asking Jovanovic’s assent. As the judges said repeatedly, this was useless as evidence. In essence Milosevic was arguing his case and attempting to testify without being sworn.

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A Dangerous Strategy

In the category of outrageous witnesses, Vojislav Seselj, head of the Serbian Radical Party (SRS) and anointed Vojvoda (duke) of the Serbian Chetnik Movement, took pride of place.17 He testified for the accused for fourteen days in August and September 2005 on all three cases, Kosova, Croatia, and Bosnia. Seselj, under indictment by the ICTY, was awaiting trial in the detention unit with Milosevic, and was a named member of the joint criminal enterprise in two of the Milosevic indictments: Croatia and Bosnia. Back home Seselj was widely known for his extreme nationalism, violence, and hate-filled rhetoric. His appearance in courtroom 1 of the Hague Tribunal was only somewhat less flamboyant. From the beginning he shouted rather than speaking in a normal tone of voice and refused to stand when the judges entered. Asked to modulate his volume, Seselj implied that doing so would diminish his masculinity. His explanation for remaining seated was in part “of a religious nature.” “I was told by priests of the Serb Orthodox Church before arriving here that the uniforms worn by the Judges here resemble the uniform worn by the former Catholic Inquisition, and this is something I do not respect. The way you bow when you enter the courtroom reminds me of a satanic ritual. I have tried to find a para-psychological explanation for this. I’m afraid that should I bow to your ceremonial, my consciousness might be affected by forces I cannot control.” It was remarkable that the tribunal apparently never considered having the Vojvoda examined for mental fitness.18 Seselj nevertheless agreed to rise when Judge Robinson threatened to stop his testimony. But he would only rise in this court, he added. The duke, it seemed, would do anything for Milosevic. One of Seselj’s roles in the joint criminal enterprise was that of propagandist. His intemperate hate speech stirred the masses to view all Croats as reincarnated Ustashas, without which many Serbs could not so easily have turned on their longtime neighbors. When Nice asked if Milosevic had ever attempted to restrain him in his use of language, Seselj demanded, “What do you mean ‘restrain’? Am I a horse and is he supposed to rein me in? What does that mean?” He said Milosevic had arrested him a few times to temporarily remove him from political life, but he did not specify whether the charges had anything to do with hate speech. Nice returned to the subject of propaganda: Nice: To make it quite clear, Mr. Seselj, in case I haven’t made it clear before, the Prosecution’s position vis-à-vis you is that you were a lethally 408   A Ca s e o f S e l f-D e f e n s e?

dangerous weapon that was allowed to operate in the territory of the former Yugoslavia by this accused, generating ethnic hatred. Do you accept that? Seselj: I never disseminated ethnic hatred. . . . Nice: The reality is you were giving hate speeches and they were an instrument to get or led to people committing these crimes as it happened in the interest of this accused. Did you not appreciate that? Seselj: I deny that categorically. First of all, I did not hold hate-filled speeches. If I did say something in hate-speak, it was against particular individuals or groups, not people in the abstract. And these speeches were never meant to incite anyone to commit crimes. You have not a shred of evidence to prove that. Seselj’s stunts, including public violence and hate-filled rhetoric, rallied some Serbs to him and repulsed others.19 He was said to be Milosevic’s alter ego, the pit bull who would shock, outrage, threaten, and say what Milosevic the “statesman” could not, at least if he wanted to preserve his image, and he assuredly did. Some in Serbia considered Seselj the “weatherman.” They looked to what he said to predict Milosevic’s next move.20 That did not hold true throughout the 1990s, however. When Milosevic imposed sanctions on the Bosnian Serbs, Seselj turned his wrath on the “leader of the Serbs,” and Milosevic reciprocated by treating him as persona non grata. By the end of the 1990s the rift had been repaired, and Seselj joined Milosevic’s national unity government in 1998 during the Kosova crisis. He served as vicepresident of Serbia from 1998 to 2000. Seselj’s party was alone in opposing Serbia’s withdrawal from Kosova in June 1999 to stop NATO bombardment. Seselj’s task in court was to recant anything he had said in the past fifteen years that could connect the accused with the crimes alleged in the indictment. During that period he both criticized and credited Milosevic for his pivotal involvement in the Yugoslav wars. For example, in an interview with the Serbian journalist Jovan Dulovic, Seselj asserted that Milosevic outfitted and armed thirty thousand paramilitary troops sent from Serbia to the frontlines in 1991 and 1992 (in Croatia and Bosnia). In court he called his former rantings bombast, political theater, strategic deception, warmongering, and provocation. He was proud of the label “scandal monger” that Del Ponte bestowed on him. Seselj obligingly told the court that he was Milosevic’s nemesis, hiding what was common knowledge in Belgrade. As an accused member of the joint criminal enterprise, Seselj needed to disassociate himself from any alliance with the accused, while explaining away the role his A Ca s e o f S e l f-D e f e n s e?   409

hate propaganda had played in igniting Yugoslavia’s wars. It was a tall order, but one that Seselj seemed to relish. Initially the court approached Seselj with deference, as if their courtesy would elicit courtesy in return. Judge Robinson was quick to commend him: “I believe you just made an important point when you spoke of adequate force, because that is to be distinguished from excessive force, and the claim is that excessive force was used.” Seselj of course agreed: “I think, Mr. Robinson, that I am saying important things all the time here. I don’t think I have said one unimportant thing in my testimony so far.” It was not long before the judges were reminded that placating a bully only encourages his bad behavior. When Judge Bonomy interjected that the court had heard enough about the constitutional order and that it would help Milosevic’s case if the witness would answer factual questions, Seselj arrogantly responded, “I regret that the Chamber did not submit to me on time a list of desirable responses. Then I could respond in the way you want me to. Secondly, my responses are my own opinions.” Because Seselj was not an expert witness, his opinions were valueless to the court. Judge Bonomy rebuked him: “That is utter impertinence. I would invite you to show some respect when you’re dealing with questions.” Unperturbed, Seselj retorted, “I am showing you the utmost respect but you are not showing respect to me as a witness. I don’t know why you are so nervous and angry. That is unfitting for a Judge. I have never expressed anger or nervousness here, Mr. Bonomy.” Cross-examination allowed Nice to give the court a glimpse of Seselj in the raw. To do so the prosecutor merely read the titles of several books he had written: The Genocidal Israeli Diplomat, Theodor Meron, referring to the president of the ICTY; In the Jaws of the Whore Carla Del Ponte, referring to the chief prosecutor. For the more egregious language taken from a magazine published by Seselj, Nice asked the witness to read. “Why didn’t you read it all out? You read more beautifully than I do,” Seselj responded, then obliged, “At the end I said: ‘All you members of the Registry office of The Hague Tribunal can only suck my dick.’ ” Nice also described a cartoon caricature of Del Ponte published in Seselj’s magazine in 2005 with the words “Arbeit macht frei,” the German phrase the Nazis cynically placed in an arc over the entrance to Auschwitz. Like Milosevic’s other witnesses on Croatia and Bosnia, Seselj testified that the Krajina Serbs’ actions were a response to resurgent Croatian fascism. He was early on the scene with rebel Serbs in Croatia, visiting the roadblock at Knin where Serbs took control of the area, blocking Croatian police in the “Log Revolution.” As the head of the SRS he responded to the JNA’s call 410   A Ca s e o f S e l f-D e f e n s e?

for Serbian political parties to send volunteers to help the Croatian Serbs. Known as “Chetniks” and “Seseljovci” or “Seselj’s men,” his recruits were implicated in numerous atrocities, according to prosecution evidence. Seselj maintained that his volunteers were incorporated into the JNA and did not fight as separate units. He told the court that he sent volunteers when requested by the Croatian Serb leaders Babic and Martic in 1990, as well as by the JNA in 1991, after tens of thousands of desertions decimated its ranks. Unintentionally, his disclosure of the JNA request to Serbian political parties added weight to the prosecution’s allegation that the JNA was not a neutral force separating warring parties in Croatia, as Milosevic claimed. Seselj’s evidence showed that at least as early as June 1991 the army was recruiting extreme Serb nationalists. Nice showed a video in which Seselj clearly told the interviewer, Laura Silber, that Milosevic often made the requests himself: “We never received any orders. These were always ‘requests.’ Milosevic would ask us, Radmilo Bogdanovic [then head of Serbian MUP] would ask us, some general would ask us, Domazetovic for example, or somebody else. They would say: ‘We need so and so many volunteers for this and that location,’ and we would gather that many volunteers.” At another point Seselj was recorded saying, “In May 1992, I began having intensive meetings with Milosevic on a more regular basis, and back then, it was always Milosevic himself who asked for volunteers to be sent out. I mean, one did not have to convince us very much. We took this as our duty, our responsibility.” 21 In court Seselj said he had lied about Milosevic’s involvement. He had implicated the accused to make trouble for him because he was angry over his position at Dayton. He was trying to stir up political intrigue. Referring to Seselj’s appearance in the video, Nice remarked, “You’re able to tell a lie like this without any change in demeanour. You can be quite convincing, can’t you, Mr. Seselj, at lies, on your own account?” Instead of answering, Seselj taunted the prosecutor, “Mr. Nice, I’d like you to be as convincing as that when you’re lying, but you’re never convincing when you lie.” Judge Robinson reprimanded him, but that did not prevent further verbal attacks on the prosecutor. Nice summarized his point: “Mr. Seselj, these answers you gave reveal the truth about the accused’s active, knowing, and criminal involvement in the sending of volunteers to fight in other parts of the former Yugoslavia, and you know that to be true.” Seselj denied that the conduct was criminal and that Milosevic had anything to do with it. Later Nice caught Seselj in a contradiction when he said that it would have compromised the SDB if the public heard of its involvement in Croatia. Either it was legal for A Ca s e o f S e l f-D e f e n s e?   411

Serbia to send forces to support the RSK or it was not. He could not have it both ways. The prosecution played another segment of Death of Yugoslavia, in which Seselj claimed that the SRS got weapons from “Milosevic’s police” and it “was all with Milosevic’s knowledge. There was no doubt.” When Milosevic questioned him earlier, Seselj said that their weapons came from Territorial Defense depots (where the JNA stored them after disarming Croats and Serbs alike, later to make them available solely to the Serbs and eventually the JNA). This testimony could only serve Milosevic if he had no control over the JNA. On direct examination by Milosevic, Seselj insisted that Milosevic had no control over the JNA, the JNA did not implement Serbian policy, and Serbia was not involved in the RSK. He gave no basis for his conclusions, which greatly frustrated the judges. To challenge his testimony Nice again turned to the BBC video in which Seselj is recorded as saying, “In May 1992, Milosevic took definitely the whole control over the JNA. That’s when the new constitution of the Federal Republic of Yugoslavia was proclaimed, and that’s when he really and formally and literally became the most important man in the country. The man who makes all the decisions.” His other alleged co-conspirators had set the date much earlier, in one case by nearly a year.

Milosevic proudly proclaimed that Serbia had remained a multiethnic state throughout hostilities, ignoring the ethnic cleansing of Croats carried out in Vojvodina, Serbia’s northern province. To show Seselj’s role in that operation, Nice read from his speech in the Serbian Assembly of April 1992, for which he was reprimanded: “We are not going to resort to genocidal activities, because it is not in the blood of us Serbs. We are not going to start killing you, of course. We are simply going to pack you into trucks and trains and let you manage in Zagreb.” Bonomy could not resist asking, “That’s your view, is it? You’re espousing—no matter how innocent the people might be living in Serbia, they should just be forced out because of the conduct of Tudjman?” Seselj replied that his party only held that view for a few months. In the event, 30 to 40 percent of Vojvodina’s Croats fled the province because of intimidation, violence, forced property exchange, and organized expulsion.22 Unfortunately for the lengthy trial and its weary participants, Milosevic wasted considerable time on general questions that elicited nonspecific answers for which Seselj could cite no source other than “common knowledge.” Asked about crimes that Croats perpetrated against the Krajina Serbs early 412   A Ca s e o f S e l f-D e f e n s e?

on, he could provide no more detail than to say, “Well, already many incidents had happened. Many Serbs were harassed, maltreated, arrested, tortured. There were graffiti written everywhere.” Not only was his response general and unsourced, but it failed to refute any charge in the indictment. Judge Robinson remarked, “Mr. Seselj, no doubt you’re a man of many virtues. Is omniscience one of them? How do you happen to know all these things?” Seselj said he read eight to ten hours a day, which only reinforced his lack of firsthand information. As Judge Robinson put it, “It would help my appreciation of your evidence if only occasionally we were told of the basis for the information you have about specific matters.” When Milosevic did turn to the indictment, his questions and Seselj’s answers showed how poorly he understood the legal concept of joint criminal enterprise, even at this late date. In one exercise the accused took his witness through the names of other alleged members, asking Seselj to describe his relationship with each. That he had serious conflicts with some and hardly knew others did not negate the existence of the joint criminal enterprise of which he was a part. The misconstruction caused Judge Bonomy to explain: “You should never lose sight of the fact that you can readily be in a criminal enterprise with a large number of people who never meet each other. The question is your links with them, the essential question.” In addition, one member need not be linked to all the other members, and the membership can vary over time. In response to continued remonstrance from the court and occasional objections from Nice that evidence elicited from his witnesses must be specific and responsive to the indictment, Milosevic protested: “I’m really wondering, Mr. Robinson, how I’m supposed to prove that the allegations by these alleged witnesses of Mr. Nice’s are incorrect. They can say whatever they like. These are merely lies, and I’m asking Mr. Seselj about the counts in this alleged indictment. If you’re asking me to prove that his witnesses are telling falsehoods, well, how can I prove non-existent facts. You keep telling me that the burden of proof is not on me, and yet I have to keep trying to prove that what Mr. Nice is saying is not true. It’s up to him to prove that it is true.” After three and a half years of trial, Milosevic still did not understand that all he needed to do was raise the elusive reasonable doubt in the judges’ minds, either through cross-examination of prosecution witnesses or by producing his own evidence to counter theirs. He did not have to disprove the prosecution’s case. After the prosecution rested its case, the chamber had denied most, but not all, of the motion by the amici for acquittal. Milosevic no longer had to A Ca s e o f S e l f-D e f e n s e?   413

concern himself with factual allegations on which the court had acquitted him. Yet a year and a half after the chamber’s decision on the acquittal motion, the accused was attempting to answer allegations that the court had already dismissed. The following colloquy occurred during Seselj’s testimony about Bosnia: Robinson: In fact, as far as paragraph 32 is concerned, you need only concern yourself with Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kotor Varos, Kljuc, Bosanski Novi. . . . Milosevic: Mr. Robinson, could you please let me know what evidence, as you say there was no evidence for these places, but what was the evidence that Mr. Nice presented here about the other places linking me— Robinson: Mr. Milosevic. Mr. Milosevic, the Rule 98 bis decision was published and was available to you. But I bring that to your attention so we don’t waste time. Milosevic’s ignorance of critical evidence produced by the prosecution at this stage of the trial again highlighted the perils of self-representation. Because of the focus on Milosevic’s health, his competence to defend himself was hardly broached, though the prosecutor raised it and on at least one occasion Judge Robinson referred to it. While the court is responsible for insuring that an accused receives a fair trial and will make greater allowances for a pro se accused, it is not required to counsel or instruct him about procedure and evidence to the extent required in a case as complex as that against Milosevic. The trial chamber appointed amici to assist in assuring that the accused received a fair trial, but the amici had long since moved into the position of assigned counsel and Milosevic refused to communicate with them. It was apparent from Milosevic’s continued struggle to understand the proceedings that he was not learning much from his legal advisors back home either. But he was to blame for his continued violation of procedural and evidentiary rules, not to mention courtroom etiquette.23 Despite the complexity of a war crimes trial and this one in particular, Milosevic should have mastered the basics: not commenting on the evidence, and not asking leading questions but letting witnesses testify. That he persisted in these errors demonstrates a certain willfulness and disregard for the institution. Occasionally Milosevic’s repeated mistakes moved Nice to object. After yet one more unsworn comment from the accused, Nice addressed the court: “It’s absurd to think that he doesn’t know that what he is doing is contrary to your rules, and the time may come when I will invite the Chamber yet again

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to ask itself the question whether conscious, repeated disobedience of your rules doesn’t invoke reconsideration of the use of assigned counsel. He wants to be his own advocate; he ought to behave like one.”24

One of the most critical pieces of evidence that the prosecution secured during Seselj’s testimony also resulted from his appearance on the BBC video from 1995. It concerned Franko Simatovic’s Red Berets. Milosevic maintained that Simatovic and the SDB did not form the Red Berets until 1996, even in the face of a video shown by the prosecution in which Frenki, in the presence of Milosevic, clearly states that they were formed by the SDB in 1991 and operated throughout the various theaters of war. In court Seselj backed up Milosevic. Nice then played the BBC video, showing Seselj identifying those in the Serbian police with whom he and his Seseljovci had established a relationship—including “Franko Simatovic, also Frenki, who commanded the Red Berets.” Since he said that in 1995, it contradicted Milosevic’s insistence that the Red Berets were not formed until 1996. Thus caught out, Seselj denied knowing Frenki at all, then claimed that the Red Berets were part of the RSK army and Frenki was a volunteer, not an SDB officer. A short time later, the Seselj of 1995 flashed on the courtroom video screens. He spoke of the operation in Zvornik, Bosnia: “Everything was planned in Belgrade. Bosnian Serb forces took part in it, and they comprised a greater part of it. Meanwhile, the special units, and the best-equipped units came from this side, they were direct police units, the so-called Red Berets, special units of the Security Service of Serbia.” Exactly what Seselj now denied. The tape continued, “[The Zvornik operation] was devised by key people of the SDB, among whom was Franko Simatovic, Frenki, and he was one of the main executors.” Seselj again denied his prior statement, saying that he had been trying to hurt Milosevic and the SDB, which, he alleged, was attempting to destroy his political party. Having issued his denial, Seselj concluded that it should end the matter. Of course it did not. The issue remained very much alive. Nice turned to the video made in 1997, already in evidence, in which Simatovic could be seen speaking to an assembled group of soldiers and officers wearing red berets. Milosevic stood next to Frenki, beaming. Simatovic spoke into the microphone, “Mr. President, we thank you for accepting the invitation to attend the ceremony marking the anniversary of the formation of the Special Operations Unit of the State Security Service. It was constituted

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on the 4th of May, 1991, at the time of the breakup of the former Yugoslavia” (emphasis added). He could not have been more clear. Yet Seselj insisted that Frenki worked for the RSK, not Serbia. The day ended with Nice asserting that Seselj was lying and that he and Milosevic had been caught at it, and a flustered Seselj yelling, “That—no. No. You didn’t catch me out lying. I’m catching you out all day today lying, and I did so yesterday too, Mr. Nice. You’re the only person lying here,” at which point Judge Robinson adjourned the session. There was one more piece of evidence supporting the prosecution’s position on the Red Berets: Seselj’s book, in which he wrote: “You already know what they do in Eastern Slavonia and Baranja. The Red Berets operate as a paramilitary formation of the Serbian State Security Service under the command of Mihaj Kertes and Franko Simatovic called Frenki and some other people from the Serbian Ministry of the Interior.” Once more conceding that he had lied, Seselj again maintained that he did so to discredit the SDB because it was trying to destroy his political party. The explanation was not plausible, no matter how often repeated. Seselj’s book, published in 1993 and more than contradicting Milosevic’s contention that the Red Berets were formed in 1996, showed that Seselj was lying in court and brought his entire testimony into question. Indeed Seselj himself told the court that he was an inveterate liar.

Having Seselj acknowledge the falsity of much of what he had said or written over the last decade and a half was a dangerous strategy. How was the court to know when he was lying and when he was telling the truth? Bothered by this, Judge Robinson asked Seselj if he was saying that the prosecution was wrong to base an indictment on his political pronouncements, which he now claimed were not true. Seselj said, “Yes,” prompting the judge to ask, “Does that cast doubt on your evidence as a whole?” It is unlikely that Milosevic did much to sway the judges in his favor through Seselj’s testimony. The prosecution gained more than Milosevic did. For example, when asked about Milosevic’s power, Seselj replied that he had “practically no power at all” by virtue of his presidency position but went on to say, “He had enormous political influence on the basis of the fact that his party was the largest party in parliament and had formed the government.” Nice quoted Seselj to himself at a time (1991) when he said his party had been unmasking the criminal state mafia in power in Serbia and the FRY: “[N]ow the time has come to unmask the main criminal named Slobodan Milosevic. 416   A Ca s e o f S e l f-D e f e n s e?

Nothing in this country can be stolen on such a high level without his permission and his knowledge.” Seselj said he was lying to discredit the accused; Milosevic had no such authority. But if he had no power, why would Seselj want to discredit him? Despite Seselj’s claim that his anti-Milosevic rantings were part of a political strategy of exaggeration and lies to put Milosevic in a bad light, Judge Bonomy found nothing in his book about Milosevic to support the claim. Was Seselj playing the bad guy, Milosevic’s nemesis, and taking positions he did not believe to increase the popularity of his party, as he said, or to make Milosevic seem more reasonable, as others charged? He admitted being a liar. It was impossible to know when he was telling the truth, as Judge Bonomy reflected: “Over what period of time do you think we cannot rely on your public statements as accurate?” Confronting Srebrenica

Though Milosevic did not live long enough to challenge the prosecution’s genocide charges for Srebrenica, the issue arose during the testimony of several of his witnesses. Unfortunately for the accused, the evidence helped the prosecution more than him. The UN Security Council condemned the Bosnian Serbs’ offensive against the protected enclave and their detention of UN personnel in a resolution passed on 12 July 1995. Though Vladislav Jovanovic was the FRY’s foreign minister at the time, he testified that he and Milosevic learned about Srebrenica’s takeover on 13 July—from the newspapers. It seems a bit unlikely that a foreign minister and the man considered to have the most influence with the Bosnian Serbs should not have been informed more directly. It appears that they were. Nice confronted Jovanovic with a stack of cables from undisclosed sources (likely foreign governments and UN personnel) providing information about events in Srebrenica. One stated that the VRS had fired twenty-two missiles toward Potocari, where Dutch peacekeepers and approximately 27,000 idps were holed up. Others referred to Bosnian Serb aggression against the civilian population. Jovanovic could not recall these critical cables. When Nice confronted him with confirmation that he had received them, Jovanovic could only say, “It says I received it. It is probably correct.” The prosecutor found that difficult to believe: “Come on, think back, Mr. Jovanovic. We are dealing with the most grave alleged crime since the Second World War, and I want you to tell this Court if you, foreign minister of one of the countries said to have been involved, received information about it. Are you going to retreat to saying, ‘If it’s in the document, then I A Ca s e o f S e l f-D e f e n s e?   417

must have done,’ or are you going to tell us what your active memory is?” The witness replied that he was waiting for confirmation from sources other than the newspapers and cables, because he took the accusations with “a grain of salt.” Bosnian Serbs had been the subject of similar accusations of campaigns against civilians which later turned out to be false, he said, referring to the massacres at Markale marketplace and elsewhere.25 When Nice quoted from a letter that Jovanovic wrote as the FRY’s UN ambassador in November 1995, claiming that the massacre was a falsehood launched to derail the peace process in Dayton, Jovanovic disavowed the letter as expressing an opinion of his government which he did not share. Nice produced a UN report from 17 November stating: “Based on all the available information, it would appear that at least 3,000 but less than 8,000 people from Srebrenica are still missing.” Faced with a scheduled discussion by the UN Security Council on the issue, the head of the Russian delegation, who happened also to be president of the council at the time, requested information on allegations of a massacre. Jovanovic sought it from his foreign ministry and received a report from the Bosnian Serb leadership. The witness claimed that he “personally did not agree with what was stated there. It didn’t seem trustworthy.” Yet he directed his deputy to cull what he could from the report and forward it to the Russians. He signed the resulting document in haste, without reading it closely, learning a day later that it had been mistakenly sent to the head of the Russian delegation in his capacity as president of the Security Council. The letter of 18 December to the president of the Security Council stated that the killings in Srebrenica resulted from a fight between Muslims who wanted to continue fighting and those who did not. Jovanovic disavowed the letter he had signed. Within a day, he claimed, the mistake of sending the letter to the Security Council instead of to the Russians was discovered. Having read what he signed more closely by this time, he “was wondering after that what to do, whether to withdraw this or to let things go as they were.” Noting that the letter had already been circulated and produced a certain effect, “[I]n vacillation as to what I was supposed to do, I let things go along the way they did.” If Jovanovic’s explanation was true, it reflected badly on his integrity and competence. Moreover, it was no more defensible to send misinformation to the head of the Russian delegation than to the head of the Security Council. On reexamination Milosevic sought to establish that no one knew about the Srebrenica massacre until long after it occurred. The accused read to his witness a telegram from Yasushi Akashi, dated 12 July 1995, stating that there 418   A Ca s e o f S e l f-D e f e n s e?

had been no reports of physical mistreatment. He read an order issued by Karadzic in 1992 that troops should abide by the Geneva Conventions, asking whether the Bosnian Serbs had undertaken measures to assure compliance. Jovanovic replied in the affirmative. When Judge Bonomy requested that the witness provide an example of any violator being punished, he could not, leaving the judge to exclaim in protest, “It would appear all you’re doing is confirming very, very leading questions put to you by the accused without having any personal knowledge of the circumstances at all, and it concerns me that these may well be valueless answers and valueless questions.” Jovanovic tried to insulate himself and Milosevic from the Srebrenica events by claiming that Serbia and the FRY had broken off relations with RS leaders at the time of the boycott in 1994 and had had no contact with them since. Yet several sources asserted that Mladic was with Milosevic at times during the VRS attack on Srebrenica. David Harland testified for the prosecution that Carl Bildt saw Milosevic and Mladic together in Belgrade on 7 July, a day after the VRS assault on the enclave began. On 14 July, during the height of the massacre, Mladic visited Belgrade for a meeting with Milosevic and Bildt. On 15 July he attended a meeting with Akashi and Milosevic. Given that international diplomats were demanding that Milosevic stop Mladic’s assault on the safe area at least by 12 July, it challenges credulity to believe that Milosevic would not have had a serious conversation with a compatriot who addressed him as “Mr. President.” In fact Mladic looked more to Belgrade for guidance and orders than to Pale because of strained relations with Karadzic for at least a year. In another attempt to show that neither he nor those close to him knew anything about crimes in Srebrenica, Milosevic cited a report by Akashi to the secretary general on a meeting held on 12 August at which he sought Milosevic’s help in gaining access to Srebrenica and Zepa for UNPROFOR and to the missing Bosnian Muslims for the ICRC. The accused quoted from Akashi’s report: “I suggested that recent allegations appearing in the press about human rights violations made such access all the more important.” Milosevic was trying to show that as of 12 August the crimes at Srebrenica were not known. Jovanovic provided minimal corroboration, stating that as of the date indicated he was still foreign minister for a few days and so must have been aware of Akashi’s dispatch. According to prosecution evidence by the UNPROFOR commander, General Sir Rupert Smith, the lack of ICRC access to Muslim prisoners was raised at the meeting of 15 July with Milosevic, Mladic, Bildt, and others. Milosevic, he testified, ordered Mladic to work things out with Smith. Mladic, however, could not provide access to A Ca s e o f S e l f-D e f e n s e?   419

the POWs because they were already dead. Trying to buttress his evidence, Milosevic cited UNSC Resolution 1034 from December 1995, calling for an investigation into violations of human rights in Srebrenica and the other enclaves. Milosevic was being disingenuous. An investigation was called for because of widespread reports of atrocities against the Bosnian Muslims as early as 18 July and the fact that five to seven thousand of them were missing. Nor was Milosevic ignorant of the possibility that the Bosnian Serbs might commit genocide, since he had shared that fear with Lord Owen as early as 1993 when it first appeared that the VRS might take over the safe area. The exact nature and extent of the crimes were not yet known, but they were still widely suspected. Jovanovic had no firsthand knowledge to offer. He responded to Milosevic’s argument by stating, “That corroborates what you are saying, namely that all these were rumours that needed to be confirmed by international factors. Nobody knew definitively that something had happened there.” It was an improper way to introduce documentary evidence and amounted to allowing Milosevic to testify, comment, and argue. The judges had grown tired of explaining this basic rule of evidence to the accused, who would not or could not follow it. Judge Robinson abruptly ended Milosevic’s reexamination of Jovanovic.

When Milosevic called to the stand his former assistant minister of the interior, Obrad Stevanovic, the prosecution not only produced new inculpatory documents. It projected a shocking videotape on courthouse TV monitors whose reverberations were felt throughout the Balkans, not least in Serbia. For a brief moment the tape raised the possibility that the heavily propagandized Serbs would be jarred from their denial. That it did not do so for long was a measure of the pervasiveness of the false world that Milosevic created and his cronies perpetuated. Stevanovic was also the witness whose diary entry “No corpse, no crime” connected Milosevic to the attempt to hide the bodies of Kosovar civilians by exhuming mass graves in Kosova and transporting the bodies to Serbia, as discussed in chapter 5. The revelatory documents emerged from the MUP building in Pale (Bosnian Serb headquarters) just as the prosecution was closing its case. One highly significant document (discussed in chapter 4) was the Dubrava prison warden’s letter to the minister of justice, showing that the police took over the Kosova prison at the time of the massacre of a hundred prisoners and that there was no NATO bombing that day. The documents also revealed that 420   A Ca s e o f S e l f-D e f e n s e?

Serbia’s MUP forces were in combat in Bosnia around the time of the Srebrenica massacre, contradicting Milosevic’s insistence that Serbia had nothing to do with the war there and certainly nothing to do with the Srebrenica massacres. Stevanovic was equally adamant. As Nice showed him document after document in which various RS officials referred to Serbian MUP units fighting on the Trnovo front in July 1995, getting wounded and killed, Stevanovic insisted that none of the events described could have happened, or he would have known about them. “I am really amazed by this,” he said of one document, implying that it must have been a forgery. He also denied that a unit called the Skorpions was a Serbian MUP unit, as stated in the documents. He claimed, however, that he was in charge of the MUP’s Public Security Sector, not the State Security Sector (SDB), and knew little about the latter’s operations. The prosecutor produced several documents specifically identifying the Skorpions as a unit from the Serbian MUP, engaged in combat on the Trnovo front in Bosnia. They were dated 30 June, 1 July, and 24 July 1995. Without disclosing his purpose in highlighting the Skorpion Unit, Nice confronted the witness: “It could hardly be clearer, Mr. Stevanovic, that a unit of the Serbian MUP by the name of Skorpions had been on the territory of the Trnovo battlefield area right through the period of the Srebrenica massacre. The documents make it crystal clear.” Reiterating that the Skorpions had nothing to do with the Serbian MUP, Stevanovic rather lamely suggested, “Maybe those units posed as being something they were not.” When the prosecutor pressed on, Milosevic’s witness vehemently responded in his own defense, “I completely reject any thought that I knew that some paramilitary units had crossed over from Serbia into Republika Srpska in order to perpetrate crimes. This cannot be brought into any kind of connection with myself as a professional. I would not have tolerated any such thing. I would not have turned a blind eye to it.” Then Nice revealed the explosive videotape, recorded by members of the Skorpions themselves, who in their hubris could only conceive that their inverted moral universe would remain dominant. He introduced it by cautioning, “This video, which is potentially distressing viewing, and I’m only going to play very small parts of it, reveals, Mr. Stevanovic, if the evidence is in due course admitted, and that’s why I want your assistance, reveals that men were brought from Srebrenica in batches to this group of Skorpions to be executed and they were executed, and what you see here is a lorry load of six young men. This is the same truck with the men in the back. And you can see the red berets.” Viewers saw the six young men shot in the back before A Ca s e o f S e l f-D e f e n s e?   421

their eyes. In understatement, Nice described the scene for the record: “The lorry leaves. The men are eventually taken up into the hills. . . . Two remaining not shot are untied. I needn’t go into the detail, or we needn’t view the detail. They’re untied, they move the four bodies, and then they are themselves shot, and I’ll leave it there.” According to one source, “In the course of the video, [Slobodan] Medic and [Milorad Ulemek] Legija respond to a question from their subordinates as to what to do with their captives. They tell them to free the captives so as to make it look like an attempted escape,” and order their execution: “It’s necessary to kill all of them.”26 Legija was a commander of the SDB’s special operations unit (JSO) and Medic a commander of the Skorpions. The SDB chief Stanisic had overall control of the Skorpions. Steven Kay immediately objected that showing the video was sensationalism without any forensic purpose. It clearly distressed the witness, who responded: “As I am upset, I have to say that this is one of the most monstrous images I have ever seen on a screen. Of course I have never seen anything like this in—live. I am astonished that you have played this video in connection with my testimony because you know full well that this has nothing to do with me or the units I commanded. I attempted to explain this yesterday, and I have also attempted to explain it today. I’m not saying that you do not have the right to do this, but I have to say that I am really upset.” He said he could not identify any of the soldiers in the video; they wore no insignia. The prosecution showed a video of Stevanovic in Bratunac (near Srebrenica) with Serbia’s deputy interior minister greeting Mladic only days after the massacre. Moreover, Serbian authorities sent Stevanovic to escort the Dutch Bat troops out of Srebrenica to Croatia on 21 July. Nice suggested that he was selected for the mission because he was trusted to pass close to the scenes of the crime. He denied this. Nice identified the Skorpion video for the court, “It’s a film, Your Honours, taken clearly by members of the unit covering the period of time from the end of June until after Srebrenica.” But he needed Stevanovic to provide a measure of authenticity. The prosecutor showed photos of the men involved, identifying each by name. Stevanovic recognized the name of only one, adding with some agitation, “I have nothing in common with them, nothing to do with them at all, and I’ve already said that.” Stevanovic said nothing to establish the authenticity of the videotape, leaving it to the prosecutor to seek to reopen his case or call someone in rebuttal to authenticate it. He planned to call one of the Skorpions who recorded the tape and provided it to the Belgrade human rights activist Natasa Kandic, who in turn gave it to the prosecution. Unfortunately the court was 422   A Ca s e o f S e l f-D e f e n s e?

not interested. It decided that the videotape of the murders of six Bosnian Muslim young men added nothing to the prosecution’s case because, in the court’s opinion, “It did not have a significant bearing on the individual criminal responsibility of the Accused. Nor would it significantly affect the outcome of the trial.”27 The decision may have reflected the court’s weariness after four years at trial and a desire to reach a conclusion in the foreseeable future; certainly it was curious for the court to judge that the Skorpion tape, showing alleged Serbian MUP soldiers executing six Bosnian Muslims in Bosnia around the time of the Srebrenica massacres, had little bearing on whether Milosevic could be connected to those killings.28 Unless, of course, the court found that the evidence produced thus far was sufficient to establish Serbia’s participation in the Srebrenica genocide. As discussed earlier, Del Ponte’s revelation in her memoir indicates that the court had in fact done so. The court also denied, for the same reasons, the prosecution’s application to reopen its case so that the RS MUP documents on Serbian MUP involvement in the Bosnian war could be introduced. Nevertheless, the video caused a wave of revulsion in Serbia, waking a nation heavily mired in propaganda and denial. It was perhaps the first time the Serbian people came face to face with undeniable proof of crimes committed in their name and for which they had been labeled international pariahs. Several months later Milosevic used Seselj to present a different version of the Srebrenica genocide. While asserting that he considered “the execution of POWs in Srebrenica as a great shame on the Serbian people,” Seselj nonetheless testified that even twelve hundred men executed was an exaggeration. When he was deputy prime minister he investigated the alleged massacre, relying on SDB and military intelligence reports. He concluded that the massacre was “staged,” that French intelligence in collaboration with western intelligence agencies was behind the killings. The intelligence agencies hired the VRS’s 10th Sabotage Detachment, in which Drazen Erdemovic served, to do the dirty work. It was a multiethnic unit, he added, to answer charges that it was only Serbs who did this heinous deed. That is how he knew that the number killed could not have been more than twelve hundred—the few men in the detachment could not have killed seven thousand men in such a short time. When Judge Bonomy asked Seselj to identify the French who were involved, he arrogantly responded, “How should I know?” As for the Skorpion video, it was a fraud perpetrated by the prosecution, Seselj declared. His defense team had information that the victims were not killed on that occasion, but were acting according to a script when the video was shot. Nice informed Seselj that the prosecution had DNA evidence, as A Ca s e o f S e l f-D e f e n s e?   423

well as statements from the murdered men’s relatives who saw them near Srebrenica shortly before they were taken away. The press reported that when Nura Alispahic turned on the television to watch the news, she was shocked to see the murder of her son, Azmir. “I saw with my own eyes when these animals killed my son. He was only 161/2. No one can understand how I feel,” she told the Associated Press. The last time she saw her son, “Serbs were entering Srebrenica and Azmir came back to give me a kiss before he fled,” she said, sobbing. “I had a feeling then that I would never see him again.”29 An Ending

Milosevic’s defense case established once and for all his need for representation by professional counsel. By legal standards it was a dismal failure—from sloppy case management, ignorance of the law, and outrageously biased witnesses to documents and testimony more helpful to the prosecution than the defense. It is doubtful whether Milosevic succeeded any better in advancing his nonforensic purposes—to rewrite history, with Serbia a victim of western hegemony and Milosevic its martyr defender. Milosevic’s defense case did more to confirm and enhance the prosecution’s case than to challenge it. The tribunal did Milosevic no favors by allowing him to represent himself. Milosevic had the opportunity to mount a defense of high quality with the appointment of the Queen’s counsel Steven Kay and his able co-counsel Gillian Higgins. But he rejected this in favor of maintaining maximum control and remaining at center stage for the final act of his career. As he did throughout his political career, Milosevic would have his way regardless of the consequences. He proved himself a gambler but not a very good one. While the risks that he took with other people’s lives kept him in power for over a decade, he lost the final bet when he put his life on the line.

The trial’s four-year mark passed on 12 February 2006 with the defense case scheduled to end in a matter of months. Milosevic’s efforts to secure an extension—including his strategy of leaving important issues until time was due to run out—had so far been unsuccessful. With his Kosova case largely complete, only two months remained to answer the Croatia and Bosnia charges. It was clear that he could not do so and was relying on the judges to rescue him at the eleventh hour, as they had during the prosecution’s case when they repeatedly extended his allotted cross-examination time.

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In the last days of February Milosevic pressed for a decision on his application for provisional release to a clinic in Moscow for tests and treatment. Though he was in court, actively examining witnesses on a regular schedule, he continued to complain of not feeling well. By 22 February he told the judges that the noise and pressure in his ears, first revealed in November, were getting worse. On the 23rd he declined to reexamine his witness because he was not feeling well. On the 24th the court issued its long-awaited decision denying his application for provisional release to Moscow, finding that Milosevic had failed to show an inability to secure necessary treatment in the Netherlands and, given the trial’s approaching end and the potential life imprisonment that he faced if convicted, the risk that he would not return was too great. That his wife, son, grandson, and brother were all living in Moscow added motivation for seeking asylum in Russia. After four years the judges appeared to finally understand the nature of the man they were dealing with: an accomplished manipulator whose only relationship to truth was his adeptness at distorting it. When court began the next day Milosevic angrily protested the decision as “highly unjust,” a tirade that Judge Robinson was not willing to hear. The appropriate response was to file an appeal, which appointed counsel did on his behalf. In the meantime Milosevic’s relationship with appointed counsel had considerably improved. Since November, Kay reported, the accused had opened communication channels and begun to use his lawyers’ expertise. They filed the required appeal to secure Wesley Clark’s return and expand the issues of inquiry to include NATO’s actions in Kosova. When Clark testified for the prosecution the United States conditioned his appearance on leaving NATO out of his testimony. Both the U.S. government and the prosecution opposed recalling Clark. Milosevic also directed counsel to seek a subpoena compelling Bill Clinton, Tony Blair, and Gerhard Schröder to testify. In the meantime the accused continued to examine witnesses without any disruption in the schedule. On the morning of 5 March 2006 a pall descended over the tribunal when Milan Babic was found dead in his cell, an apparent suicide. Babic, the former RSK leader who pleaded guilty to persecution and testified against a number of his former cronies including Milosevic, had returned to The Hague from the undisclosed location where he was serving a thirteen-year sentence to testify against his nemesis, Milan Martic. Rumors of murder circulated. More than a few people would have liked to be rid of him. An investigation by the ICTY, however, confirmed that he took his own life by using his belt

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and a plastic bag to suffocate and hang himself, as if fearing that one method alone might fail. Before the tribunal could absorb the shock of Babic’s death, it faced another. Six days later, on the morning of 11 March, a Saturday, a guard at the UN Detention Unit (UNDU) found Milosevic lying unresponsive in bed. His face was grayish, his ears blue. He was pronounced dead by the UNDU physician by 10:30 a.m.; an autopsy established the time of death at between 7:00 and 9:00 a.m. Almost immediately on disclosure of Milosevic’s death, his family and supporters accused the tribunal of poisoning him. If not that, they charged, he had died from inadequate medical care and the court’s refusal to let him be treated in Moscow. Fueling these pronouncements was a letter Milosevic had written to the Russian Foreign Minister on 8 March, three days before his death, in which he claimed he was being poisoned. It was a clever attempt to use to his advantage the discovery of a drug, rifampicin, in his blood that counteracted his prescribed medication for high blood pressure. At the time the court was looking into reports that Milosevic was manipulating his medication to support his need for treatment in Moscow. While it was never determined how the drug got to Milosevic, it most likely came from outside the Netherlands, where use of the drug was only allowed under highly regulated conditions to treat tuberculosis. Milosevic’s final attempt to escape his fate apparently began in October or November 2005, when he requested an examination by three doctors of his choosing from Serbia, France, and Russia. The physicians reported that his condition was unstable and recommended further tests and six weeks’ rest. The court adjourned the trial from 16 to 29 November after Milosevic declared that he was unable to continue. On 12 December the court granted six additional weeks off. It was then that Milosevic applied for provisional release to Moscow. Also in December, the UNDU commanding officer wrote a memorandum advising that he was unable “to adequately prevent unauthorized medications reaching Mr. Milosevic because of the ‘privileged’ arrangements for visitors and an office at UNDU,” followed by a similar memorandum from the DU medical officer.30 In 2003 the court ordered that Milosevic have access to a private office where he could receive his legal assistants, witnesses, and others relevant to his case. Access to a private telephone line enhanced Milosevic’s ability to secure contraband items. The report on the ICTY’s investigation into Milosevic’s death concluded: “It must be accepted that the arrange-

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ments in this case for the provision of privileged facilities within UNDU for the purposes of his defence compromised the security of UNDU and provides an explanation for Mr. Milosevic’s ability to gain access to a variety of medication which had not been prescribed by his treating doctors. Of course, for this problem to have arisen, it was necessary that Mr. Milosevic was prepared to put his own life and health at risk by using non-prescribed medications, and for him to be able to arrange access to these medications and persuade visitors to smuggle them into UNDU. The availability of a privileged telephone in the office may well have facilitated arrangements to obtain medications.”31 DU staff warnings had spurred the court to investigate. Because Milosevic refused his consent to release medical information in the expert’s report, the court did not receive it until late January, at which point it ordered the parties to submit briefs on the issues raised. By then it was obvious to the court that Milosevic was manipulating his medications to raise his blood pressure and lend weight to his declared need to get to Moscow. The experts reported finding rifampicin in Milosevic’s blood. They were prompted to look for it because the “cocktail that always works” to lower blood pressure was not doing its job. Normally blood is not screened for rifampicin because of its limited use in the Netherlands.32 But the specialists suspected that a drug was neutralizing the prescribed medications, and rifampicin was the likely culprit. A specialized test in February confirmed their suspicion. On 7 March Milosevic learned that the court knew about the rifampicin. On 8 March he accused someone at the tribunal of poisoning him. After Milosevic’s death on 11 March the Netherlands Forensic Institute performed autopsy and toxicology tests, followed by an extensive investigation by the ICTY’s vice-president, Judge Kevin Parker. Both the tests and the investigation concluded that Milosevic died of natural causes—a heart attack. No rifampicin or other chemical substance was found in his body at the time of death, laying to rest accusations of poisoning. An independent investigation by the district office of the public prosecutor in The Hague reached the same conclusion. The investigation’s astonishing revelation was the extent to which Milosevic had willingly risked his health and his life. Records showed that at least since 19 July 2002 he had flouted his doctors’ advice by substituting another drug for medication prescribed to control his high blood pressure. He continued his manipulations through 2004 and 2005, probably to elevate his blood pressure and get time off from trial. Medication not prescribed by his

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treating doctors was found in his cell on several occasions. At least some came from Serbia. On one occasion a room inspection turned up a bottle of contraband whisky. Judge Parker concluded: The effect of the events known by the end of 2005 is to indicate that, in significant respects, during his detention at UNDU, Mr. Milosevic disrupted his prescribed treatment and ignored medical advice given to him by the medical officer at UNDU, his treating cardiologist, Dr. van Dijkman, and others. While Mr. Milosevic has denied a number of these matters, the circumstances point to the conclusion that throughout his detention Mr. Milosevic failed to act on advice to adjust his lifestyle to lessen the cardiovascular risk which he presented, and that on occasions he refused to accept advice to take medications, or varied the prescribed dosage, refused to undergo recommended tests, and administered to himself medications which had not been prescribed by his treating doctors. The conclusion may also be drawn from the known circumstances, despite denial by Mr. Milosevic, that he administered rifampicin to himself, this being a medication that could significantly countervail the effectiveness of medications prescribed to lower his blood pressure. If this were the case the circumstances would also support a conclusion that he was manipulating the effectiveness of his prescribed treatment for other purposes, at obvious risk to himself.33 The severity of Milosevic’s heart condition was also new information to the public. That he would manipulate medication, given the gravity of his condition, is astounding. But Milosevic was a gambler. He gambled with the lives of his countrymen and women—and with his own. He was also arrogant, believing in his own invulnerability and power to control events. As with many such men, hubris was his undoing. The report put to rest speculation about murder or suicide, except among Milosevic’s family and most fanatic supporters. As early as April 1991, before he came to The Hague, the Military Medical Academy in Belgrade concluded that Milosevic was at high risk of heart attack, sudden cardiac death, or sudden malignant heart rhythm disorder. Milosevic knew this, yet he played fast and loose with his medications. While Professor Bockeria of the clinic in Moscow implied that Milosevic’s condition was treatable (noting that his brother had a similar condition, successfully treated with a stent in Moscow shortly after Milosevic’s death), the report noted that two cardiac specialists, one appointed by the court and the other selected by Milosevic, concluded that virtually no treatment could have prevented the heart attack. The report 428   A Ca s e o f S e l f-D e f e n s e?

also clarified that the length of the trial was due almost entirely to Milosevic’s ill health and his insistence on representing himself, confirming that the trial chamber was correct to impose counsel in 2004 (and should have done so earlier) and that the appeals panel was wrong to have reversed the decision. While Milosevic did not intentionally take his own life, he certainly did little to improve his condition and did much to worsen it. He refused to change his lifestyle—to exercise, eat properly, or stop smoking. He refused to take steps to lessen the tremendous stress he was under, such as appointing counsel or using Kay and Higgins to assist him in court. He manipulated his medications in ways that raised his blood pressure and risked further impairment of his health. As for the ICTY, it might be faulted for having been too trusting of Milosevic in providing him the means to secure contraband from outside. But it was Milosevic who was responsible for jeopardizing his health. Judge Parker’s report makes clear that he was not the victim or martyr he wanted the world to believe. He was controlling and manipulating circumstances until the last—when, as so many times before, he overplayed his hand. This time he, not the innocent, died.

A Ca s e o f S e l f-D e f e n s e?   429

C o n c l u s i o n s a n d R e c o mm e n d at i o n s Chapter 16

Aftermath

In death Milosevic was lionized as the Serbian martyr he had aspired to be by those who supported him in life. Using the strategy that elevated him to ruler of the Serbs, his cronies bused people from throughout Serbia, Montenegro, Kosova, and Bosnia to a memorial in Central Square in Belgrade. The crowd was estimated at fifty to eighty thousand. Despite family squabbling he was buried in his hometown of Pozarevac, under the lime tree where he first kissed Mira. Near the first anniversary of his death that romantic gesture was subverted by a fellow citizen who drove a Hawthorne stake into his grave, an ancient Balkan ritual to assure that an evil spirit never returns.1 None of his family attended the funeral or burial. His wife Mira and son Marko were in Moscow evading arrest, while his daughter refused to come because she wanted him buried in Montenegro where he was born. At a press conference in Moscow, Mira vowed to carry on her husband’s “ideals.” There were plenty of people who mourned Milosevic, seeing him as the latest Lazar, the mythic Serb victim he sought to portray. As Marija Bursac, a Serb refugee from Kosova, commented, “My whole world came crashing down once I heard—it’s so tragic. I’m glad I lived in this time, though, since this kind of man is rarely born.”2 Ceda Ristovic, another Kosova Serb refugee, also believed the myth of the martyr: “No mother will give birth to another man as good as him.”3 Yet the number of mourners was relatively small compared to the hundreds of thousands who mobilized to oust him from power in October 2000. Reflecting those not swayed by the myth, a resident

of Pozarevac commented on the people assembled for his funeral: “I can’t believe what is going on here. It looks like collective amnesia.” Branislava Miloradovic, an English teacher, added, “It’s humiliating that so many people appeared there. If they forget, they are idiots, and I hope there are more of us who still remember.”4 Some with longer memories put up a printed notice, mocking the traditional death notice tacked to trees and telephone poles: “Thank you for all the deceptions and theft, for every drop of blood thousands have spilled for you, for the fear and uncertainty, for the ruined lives and generations, for the dreams that never came true, for the horrors and wars you waged in our name without ever consulting us, for the burden you have placed on our shoulders.” In Belgrade Politika, formerly a regime mouthpiece, published an added paragraph: “We remember the tanks on the streets of Belgrade and the blood on its pavements. We remember Vukovar. We remember Dubrovnik. We remember Knin and Krajina. We remember Sarajevo. We remember Srebrenica. We remember the bombing. We remember Kosovo. And we shall yet be recalling all that. And dreaming it. We remember the dead, the wounded, the doomed, the refugees. We remember our ruined lives.”5 At the same time pronouncements from across the political spectrum buried the trial along with Milosevic. Michael Scharf, professor of law at Case Western Reserve University and a Balkan scholar, frankly concluded, “That’s $200 million down the drain.”6 Gwyn MacCarrick, an Australian human rights lawyer, wrote in an op-ed piece that “the net result [of the trial] was nil.”7 Some dug the hole a bit deeper, burying the tribunal and international justice along with it. Quentin Peel, international affairs editor for the Financial Times, concluded, “The failure to reach a judgment in its most high-profile case is a blow to the reputation of the United Nations tribunal, and raises new questions about the effectiveness of international justice as a whole.”8 Certainly the failure to hear all the evidence and reach a verdict had negative repercussions. The aborted trial dealt a blow to efforts to determine whether genocide in Bosnia was limited to Srebrenica or was more comprehensive in time and place. In its mid-trial decision on the Motion to Acquit, the Milosevic court ruled that the prosecution had presented sufficient evidence, if believed, to support its charge of genocide in the camps in 1992 and during and after the ethnic-cleansing blitz of villages across Eastern Bosnia and the Bosnian Krajina, as well as in Srebrenica. It was a much wider genocide than the tribunal had yet established. Such a comprehensive view could only be had in the trials of core members of the joint criminal enterprise. C o n c l u s i o n s a n d R e c o m m e n d at i o n s   431

With a decision in the Milosevic trial foreclosed, the only remaining possibility to consider a wider genocide is in the trials of Mladic and Karadzic.9 If a wider genocide occurred and is never officially acknowledged, truth is distorted, with implications for survivors, perpetrators, and the remaining citizens of the former Yugoslavia—and certainly for future generations. Like the truth about earlier buried crimes (notably the Ustasha genocide against Serbs, Jews, and Roma during the Second World War), the truth about genocide in the former Yugoslavia, forced into the subconscious, may surface in the future in an explosive and destructive way. As this book was being written, Radovan Karadzic was discovered in Belgrade, arrested, and turned over to the tribunal to stand trial, thirteen years after he was indicted for genocide, crimes against humanity, and war crimes. In its amended indictment, submitted on 22 September 2008, the prosecution charged Karadzic with two counts of genocide—one for Srebrenica in 1995 and the other for the blitzkrieg of ethnic cleansing in ten identified villages in 1992 and the detention camps where thousands died. The victims will now get their day in court. And what of the victims of Milosevic’s bloody policies? Did the lack of a verdict rob them of satisfaction? Chief Prosecutor Del Ponte thought so: “[His death before judgment] deprives the victims of the justice they need and deserve.” Richard Dicker of Human Rights Watch agreed: “It’s a huge setback for justice. Most of all it’s a setback for the victims.”10 While there is truth here, it is not the whole truth. The feelings and opinions of victims, as with any group, are never homogeneous. Milosevic was called to account before an international court and spent the last five years of his life behind bars, rather than on the sunny shores of a Greek isle. Once the leader of the Serbs, considered the most powerful man in the Balkans by international leaders, he ended his life ignominiously. Responding to well-substantiated allegations, he was made to face those whose lives he shattered, as well as the international figures he courted. The victims and eminences likewise had the opportunity to accuse him face to face. As the young Montenegrin soldier declared, “You were issuing shameful orders,” and as the grandfather whose family was murdered asked, “How can you kill women and children? Don’t you have any feelings?”11 While there was great disappointment that Milosevic evaded a verdict, there was also satisfaction that he died in jail. As Hajra Catic of the Association of Srebrenica Mothers stated, “It is a pity that we will not see him facing justice, that we will not hear the verdict. However, it seems that God punished him already.”12 Eric Stover conducted a study of victim witnesses who testified at the ICTY in 432  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

other cases and found: “For many study respondents, merely being in the courtroom with the accused while he was under guard helped to restore their confidence in the order of things. Power, one witness said, ‘flowed back from the accused to me.’ If only for a brief while, this witness finally held sway over his personal tormentor, and his community’s wrongdoer.”13 Accomplishments

Despite their unsatisfactory denouement, the proceedings against Milosevic accomplished a great deal. Human Rights Watch noted in its evaluation of the trial, “As the first former president brought before an international criminal tribunal, the trial of Milosevic marked the end of the era when being a head of state meant immunity from prosecution.”14 The trial dispelled the uncertainty surrounding a decade of crimes to reveal the pivotal role played by Milosevic and Serbia in fomenting and supporting war in Yugoslavia. Documents, intercepted telephone calls, transcripts of meetings, and testimony from those who once helped Milosevic in his criminal endeavor exposed a vast record that would never have come to light without the trial. As Aryeh Neier, president of the Open Society Institute and founder of Human Rights Watch, concluded, “The mountains of evidence in its records make the horrendous crimes committed in the wars in ex-Yugoslavia comparable in the extent of their documentation to those by the Nazis.”15 The record will be used in other trials at the ICTY, as well as in the former Yugoslavia. It will be available to historians who have a critical role in revealing truth, preventing revisionism, and helping to establish a common historical understanding of events that tore apart a country and its people. It may take generations, as it did in Germany after the Nuremberg trials, but the record will remain available for the time when Serbs, Kosovars, Croats, and Bosniaks are able to view it more openly, without the fog of war, hatred, and suffering. Though Adolf Hitler never stood trial, the record amassed at the Nuremberg trial of twenty-two top Nazis informed future generations of the Reich’s atrocities and broke through German denial. As Human Rights Watch pointed out, “It is also likely to be the only ICTY trial that comprehensively examines Belgrade’s role in Bosnia and Croatia. Although it was widely assumed that Serbia supported the Serb combatants in the conflicts in Croatia and Bosnia, the full extent of the support and the mechanisms by which it was accomplished were not public until the Milosevic trial. Much of Belgrade’s involvement in the conflicts was deliberately kept secret. . . . In short, the trial showed how Belgrade enabled the war to happen.”16 C o n c l u s i o n s a n d R e c o m m e n d at i o n s   433

The Milosevic trial contributed substantially to the developing jurisprudence of international humanitarian law on such topics as command responsibility, genocide, and self-representation. The court’s struggle with selfrepresentation in particular and how it played out in the courtroom may be its greatest legacy to future war crimes trials. The cliché that we learn more from our mistakes than our successes is apt. While allowing Milosevic to represent himself may have been the court’s most grievous mistake, it is a mistake that is sure to be studied by others. Among the court’s achievements in managing this most difficult of trials was its early decision to appoint amici curiae to assure that all legal defenses and interventions open to the accused were brought before the court. While Milosevic refused to communicate with the amici, and two of the three were dismissed because of confusion over their roles, they nevertheless served an important purpose in the trial.17 In addition to filing hundreds of procedural motions (Milosevic refused to concern himself with procedural issues or file anything in writing), the presence of amici throughout the trial made it possible for the court to appoint them to represent Milosevic when it desided that he could no longer represent himself. Without the amici who had been present from the beginning, the trial would have faced a substantial adjournment while new counsel brought themselves up to speed. When the appeals chamber overruled the trial chamber, Kay and Higgins were shifted once again, this time to standby counsel. Milosevic stalwartly rejected their help. But as he grew desperate to gain release, he turned to them at the eleventh hour. The court’s appointment of amici turned out to be fortunate. To assure that a pro se accused receives a fair and expeditious trial, courts should appoint standby counsel at the outset, whether the accused wishes to make use of them or not. To avoid confusion over their role, courts should distinguish between standby counsel and amici curiae, the former to assist the accused, the latter to assist the court. The duties of each should be clearly set out. The trial chamber’s decision to appoint counsel for Milosevic, though late in the day, deserves commendation. In taking this step the court demonstrated its independence from popular opinion, including in the legal community. The court concluded that appointing counsel was the right way to assure a fair and expeditious trial and to uphold the integrity of the process. Its decision also rested on significant jurisprudence—from the ICTR as well as from the United States, a common law country that nevertheless recognizes limits to the right of self-representation. While the appeals chamber erred in returning Milosevic to first chair in his defense, it provided useful guidance for future trials by setting a standard 434  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

for determining when substitution of counsel for a pro se accused is appropriate, that is, when self-representation by the accused is “substantially and persistently obstructing the proper and expeditious conduct of his trial.” The higher court clarified that witness testimony can be submitted in writing under ICTY rules even where it concerns the acts and conduct of the accused, as long as the witness is available for cross-examination. In so ruling the appeals chamber opened a door for the parties to present valuable evidence that time limits otherwise would have kept out. Milosevic chose not to avail himself of this possibility, forgoing an opportunity that would have allowed him to conclude his Kosova defense much sooner and possibly meet the deadline for presenting evidence on the Bosnia and Croatia cases. Written evidence also has disadvantages. Chief among them is the lack of a public airing of testimony. When statements are submitted in writing, the public and the judges hear witnesses primarily through cross-examination, which may make their testimony appear less credible. This did not appear to be the case in the Milosevic trial, partly because of Milosevic’s lack of legal competence. This drawback is likely to be more pronounced where professional counsel is the cross-examiner. In the Milosevic trial written testimony often did not come before the public, as witness statements were not provided to journalists expeditiously. Often only a summary was given. It is understandable that providing full testimony to the public should depend on having adequate resources, but the principle of an informed public is an important one. As Human Rights Watch concluded in its report on the trial, “All organs of the court should keep in mind the importance of making the proceedings meaningful to the communities most affected by the crimes.”18 These communities relied on media reports and live broadcasts of the trials. Documents and statements were inaccessible to them. The difficulty of the court’s struggle with an obstreperous and manipulative accused should not be underrated. It required vigilance through a long and complex process to notice and stop Milosevic’s manipulation and, at times, outright deceit. It was not always possible. The court’s efforts to err on the side of providing leeway to the accused because he was representing himself gave him opportunities to manipulate the system, of which he took full advantage. The prosecution, though taking a noninterventionist approach as desired by the court, assisted in exposing Milosevic’s tricks. While the lead prosecutor and his team were strong advocates for their positions, they also demonstrated a commitment to fairness. Too often prosecutors in an adversarial C o n c l u s i o n s a n d R e c o m m e n d at i o n s   435

system forget their duty to justice, relying on the give and take between opposing parties to reveal errors in their presentations. Geoffrey Nice, Dermot Groome, Hildegard Uertz-Retzlaff, Christina Romano, Dirk Ryneveld, and other team members upheld the highest standards of their profession, fulfilling their responsibilities with respect for the court, the accused, his witnesses, the amici, the translators, and other court personnel. Nice graciously acknowledged his mistakes yet respectfully held his ground when the judges took offense over his position. Young trial attorneys, particularly those seeking careers in the arena of international humanitarian law, would do well to study the prosecution’s in-court presentation of its case. The same can be said for the amici. In particular, Steven Kay and Gillian Higgins demonstrated how competent defense counsel could have aided Milosevic’s case, as well as contributed to a more professional process. Their work was of the highest caliber, and despite Milosevic’s disregard of their efforts they advanced his interests through their numerous motions and interventions on his behalf. All those associated with the Milosevic trial, including journalists and observers, sacrificed a great deal in fulfilling their various roles—leading ultimately to a trial that was fair, if flawed and incomplete. They worked excessively long hours. Some gave up professional opportunities and higher salaries. Families also sacrificed their loved ones’ time and attention—in some cases for years. Though there is no proof, it is impossible to say that the strains of the trial had no effect on Judge May’s health and untimely death. Criticisms in this book should be taken with all this in mind. Even when we do our best, reflection allows us to improve. Regardless of what one thinks about the Milosevic trial, its failings do not lead to the conclusion that the ICTY and international justice are failed experiments. Though the most notorious, Milosevic’s trial was only one among more than fifty. As the ICTY press spokesman Christian Chartier pointed out, “This is not a Milosevic tribunal.”19 All told, 159 accused persons were brought before the tribunal to answer egregious charges, from persecutions and deportation to genocide. Sixty-one had been convicted as of this writing, representing all ethnicities engaged in the decade of wars, contradicting the charge of victor’s justice. A UN tribunal, the ICTY does not represent any side in the Yugoslav wars. Who, after all, was the victor of that bloody and destructive decade? While Mladic remains at large, the tribunal has put other members of the joint criminal enterprise behind bars. Momcilo Krajisnik, member of the SDS main board and RS tripartite presidency and president of the RS Assembly, 436  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

was convicted on three counts and sentenced to twenty years in prison. Biljana Plavsic, SDS leader and member of the RS tripartite presidency, pleaded guilty to persecution and received a sentence of eleven years. Despite the relatively light sentence, she remained in prison until she was nearly eighty. The tribunal established that genocide was carried out in Srebrenica against the Bosnian Muslims, and will decide whether five top RS military and MUP leaders, now at trial, are guilty of that genocide or of aiding and abetting it. For crimes committed after the takeover of Vukovar, Commander Mile Mrksic of the JNA was convicted and sentenced to twenty years. Stanislav Galic, commander of the Sarajevo Romanija Korps, was convicted for crimes associated with the siege of Sarajevo and is serving a life sentence. His successor, Dragomir Milosevic, received a twenty-nine-year sentence. Milomir Stakic, mastermind of the infamous concentration camps at Trnopolje, Omarska, and Keraterm, is serving forty years. Moreover, twenty of the accused have pleaded guilty, confirming the validity of tribunal convictions in other cases and throwing more light on what actually happened. In the end the ICTY provides an account challenging the nationalist narrative of perpetrators as heroes. Drawbacks

That the trial of one man, though one who played a pivotal role, failed to conclude does not mean that the truth will fail to emerge, just as a verdict could not reveal all of the truth. The trial of an individual has a narrow remit. Was this one man guilty of these named offenses? The trial could not encompass guilt for a war, for dissolution of a country. That was not its purpose. An important reason for establishing the ICTY was to negate the broad brush of collective guilt. By trying individuals for their specific crimes, it was intended that the innocent within ethnic groups would no longer bear the stigma of crimes they did not commit and may have actively opposed, thus interrupting the cycle of hatred, violence, and internecine warfare. Paradoxically, the time and expense required to try individuals in a legitimate proceeding with full due-process protections narrows responsibility for crimes that required thousands of people to accomplish. Even with domestic trials aiming at nonleadership participants, thousands of the guilty will go free. Moreover, as the law professor and author Mark Drumbl writes, “Here lies the danger in the penchant of international criminal justice to locate responsibility for mass atrocity only in a small number of notorious leaders. The trial becomes about the individual, not about the crimes.”20 Nor is it any longer about the victims. C o n c l u s i o n s a n d R e c o m m e n d at i o n s   437

To conclude that the aborted Milosevic trial sets back the ICTY and international justice imposes grandiose expectations on one trial, as well as on the justice-making process. The trial of Milosevic, however significant, could never have ended controversy in the former Yugoslavia, any more than it could have determined the ultimate fate and usefulness of international justice. While ICTY trials of more than a hundred other defendants reveal more of the picture of crimes committed during the decade of wars, they cannot complete it. Some of the worst offenders, such as Franjo Tudjman and Zjelko Raznjatovic (Arkan), are dead. Other responsible parties will be tried by domestic courts in the former Yugoslavia, while still others have faced and will face justice in other states. And many will live in high style on ill-gotten gains from other people’s tragedies. The Geneva Conventions require every soldier to disobey an illegal order, such as an order to intentionally kill civilians. Remarkably, hundreds and perhaps thousands did refuse illegal orders, yet the majority did not. They are left to their conscience, while their victims who survived must meet them on the street, in cafés, in the village square, condemned to relive the torment that so altered their lives. The freedom of one is the prison of the other. For the victims justice is incomplete, and would be so even if Milosevic had been convicted on all counts and sentenced to life in prison. If there is no guarantee or even likelihood that justice will reveal the whole truth, should we expend the significant time and resources in using an international legal regime to decide who is guilty of the most egregious crimes against society? What are the alternatives? Truth commissions, domestic trials, traditional methods of justice, summary execution, exile in exchange for peace, war, nothing? There is a place for several of these in a society’s attempts to heal from atrocities, and they can help complete the historical narrative. But none can replace accountability, which a system of law and justice best provides; for offenses as grave as those committed in the Balkans, accountability is due to the entire human community in an international forum. As Aryeh Neier cogently writes, “Criminal trials even of a few arch criminals, followed by convictions and appropriate punishment, serve two principal purposes. They constitute an acknowledgment, through proceedings with the requisite gravitas, of the suffering inflicted on the victims. International prosecution and punishment are particularly significant—an unambiguous statement that the whole world has joined in the condemnation of those criminals. Punishment by an international body seems especially fitting when criminality reaches the level of crimes against humanity or genocide. The other purpose served by trials is to demonstrate that the most 438  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

fundamental rules that make a civilized society possible may not be flouted with impunity and that even the highest leaders cannot be shielded.”21

To deny that the Milosevic trial was a failure is not to say that it was errorfree. Justice, like all human endeavors, is not an exercise in perfection. Success is measured in our best efforts and our attempts to learn from mistakes. It is far too early in the attempt at international justice to declare it a failure, particularly considering the alternatives. When most people speak of lessons learned from the Milosevic trial they inevitably note its length and complexity, and fault the prosecution for throwing so wide a net, with sixty-six charges. The main reason for the length of the trial, however, was not the size of the indictment. Rather, it was Milosevic’s time wasting and irrelevant cross-examination, the court’s leniency in granting him extensions, and his chronic and severe medical condition, as well as his tendency to manipulate it, which significantly abbreviated the trial schedule and caused numerous adjournments.22 While any pro se defendant will waste time, Milosevic did so on purpose and to the extreme. He told the court that he would pursue his own agenda rather than provide a legal defense. This should not be countenanced. Nor should a court bend to the insistence of an accused to represent himself when his medical condition provides a major impediment. Prosecutors in future leadership cases will take the wrong lesson from the Milosevic trial if they automatically dismiss bringing a comprehensive indictment in favor of a series of individual incident-based indictments: as noted, other factors than the size of the indictment contributed to the trial’s length, and in any event the facts of a case should determine which type of indictment to bring. Saddam Hussein engaged in a series of crimes throughout his long career, while Milosevic set a criminal conspiracy in motion and guided its implementation over a decade. The implementation of a conspiracy cannot be proved if one only considers isolated crimes in Vukovar or Sarajevo. Moreover, that Saddam was convicted in one case did not provide justice for Iraqis.23 His execution prevented his being brought to account for genocide against the Kurds and the murder and ethnic cleansing (forcible expulsion, deportation) of hundreds of thousands of Shi’a Muslims, as well as a long list of other egregious crimes.24 From the prosecution’s point of view there was a theme connecting criminal activity occurring in the wars in Croatia, Bosnia, and Kosova. Prosecutors called the enterprise a criminal one and accused Milosevic of being a pivotal C o n c l u s i o n s a n d R e c o m m e n d at i o n s   439

part of it. They set out to prove the existence of that enterprise and the conspiracy that brought it into being and implemented it. In addition, they had to prove the crimes necessary to carry out the conspiracy—killing, forced expulsion, torture, rape, property destruction, persecutions. It was a big order, but a legitimate approach. The prosecution strengthened its hand by introducing adjudicated facts and transcripts of witness testimony from other trials. Though there were thousands of crime sites, they concentrated on a representative number, weighing the interests of victims to have their suffering acknowledged in an international court against time and evidentiary limitations. During trial the court requested and secured a further reduction in the number of crime sites.25 Bringing a comprehensive case also allowed the prosecution to present evidence of a larger genocide, which would not have been possible otherwise. The prosecution could also have chosen to bring the cases separately. Doing so would have required a number of witnesses to testify two or more times, with the accompanying inconvenience and cost (not to mention trauma for some), as well as the duplicative introduction of documents, intercepted telephone calls, and other exhibits. It would have sacrificed an understanding of what motivated Milosevic and his co-conspirators, how the conspiracy changed over time, how conflict in one area was used to initiate conflict in another. All the wars—and the crimes accompanying them— were intimately connected under the prosecution’s theory and in reality. Another reason for consolidating the three indictments was the prosecution’s fear that if it secured a conviction in the Kosova case, the ICTY “would not have the political will to financially support a second trial for Bosnia and Croatia.”26 As a result Milosevic would not have faced the genocide charges, nor would evidence of Serbia’s extensive involvement in the Bosnia and Croatia wars been revealed, leaving a truncated and distorted history of the Balkan conflicts of 1990, ripe for exploitation by Serb extremists. That said, with sufficient pre-trial time the prosecution could have eliminated the duplication of crimes charged in the three indictments.27 As the report by Human Rights Watch points out, “Apart from the genocide counts, all the counts were charged at least two or three times.”28

The Milosevic court, for the best motives, wrongly accepted Milosevic’s illogic in granting him the right to represent himself, despite his declaration that he would use the process as a means to attack his enemies. The judges likely believed that they could entice him to mount a defense by agreeing to 440  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

his charade of self-representation. This was a major mistake. One lesson to be taken from this troublesome trial is that it does not work to compromise with bullies. They regard compromise as a weakness to be exploited, which is precisely what Milosevic proceeded to do. Much to the court’s irritation, Milosevic used his cross-examination time to make speeches, browbeat, and humiliate witnesses against him, comment disparagingly on testimony, and endlessly repeat questions that had little or nothing to do with a witness’s testimony. Obviously his antics were not meant to impress the court but were directed at his audience back home. More than a few observers viewed the proceedings as an effort by Milosevic to make a mockery of an international tribunal that was out to get Serbs. The constant need to reprimand the accused for violating the rules placed the court in an adversarial relationship to him and damaged its appearance of impartiality. Ultimately the court chose to intervene only for the most egregious violations.29 Thus with help from the media, Milosevic remained able to dictate reality to his countrymen and women, though they had ousted him from office less than two years before. Even as a prisoner he wielded a malevolent power. Milosevic was shrewd in manipulating the court. Throughout the lengthy trial he used his allotted time for irrelevancies, counting on the court to extend his time in the hope that he would ultimately address relevant issues. The court most often obliged. Though at the time of his death it had not extended his time to respond to the Croatia and Bosnia cases, the court’s record indicated that it would do that too. Milosevic was counting on it. The ICTY investigation of Milosevic’s death concluded that Milosevic manipulated his medications throughout the trial to gain more time out of court. Privileges that the court granted to him (a private office, a telephone, and three legal assistants with privileged access) enabled him to carry out his plan. Refusing legal counsel who would have obligations to uphold the integrity of the judicial process also allowed for manipulation. Milosevic chose his legal assistants from Serbia, at least one of whom likely brought in contraband.30 Much of this could have been avoided had the court denied him the right to proceed pro se and required representation by a lawyer. When the trial chamber finally asserted its authority and appointed counsel, the appeals chamber, which had not experienced daily life with Milosevic, overturned the decision, handing him more power. This did not enhance the tribunal’s standing. To an extent Milosevic considered the ICTY proceedings a game. While his adversaries attempted to win by presenting facts and playing by the rules, C o n c l u s i o n s a n d R e c o m m e n d at i o n s   441

Milosevic cheated. He had never played fair in his career. It was foolish to think that he would do so when so much was at stake. His cheating encompassed offering fraudulent documents into evidence, scripting the testimony of his witnesses, and creating documents to support his position while withholding contemporaneous documents that would more likely have revealed the truth. Though it has not been proven, it is plausible that his supporters threatened witnesses at his direction, preventing several from testifying and affecting the truthfulness of the testimony of others. On several occasions Milosevic revealed the identities of protected witnesses in court. This may well have prevented other witnesses from testifying, as well as subjecting protected witnesses to potential danger. Future war crimes tribunals and the ICC must take account of the character of the people they will mostly be dealing with—ruthless men and women who have no ethical qualms about lying, perpetrating fraud, or threatening and even killing witnesses. These are people whose careers were built on deceit and manipulation. The majority will challenge the right of those who seek to try them, refusing to abide by court rules, as Milosevic, Saddam Hussein, Charles Taylor, and others have done.31 These are men who consider themselves above the law—indeed they were the law in their respective countries. It would be foolish to believe that such tyrants will accede to a law that seeks to hold them accountable for acts they considered not subject to any law.32 Certainly the rights of the accused are to be protected, not least the presumption of innocence. Yet courts ignore reality at their peril. They must be prepared to handle these most obstreperous accused, applying rules firmly and consistently, using their contempt power to fine or remove an accused from the courtroom while providing him with video and transcripts of any proceedings in his absence. Courts should not be reluctant to order investigations where fraud is suspected, whether through the submission of false documents or the false testimony of witnesses. Witnesses suspected of perjury should likewise be investigated and subject to charges, and to fines and prison sentences if found guilty.33 The accused who seek to represent themselves should be allowed to do so—if they abide by the rules and are capable mentally and physically of providing an adequate defense. An accused is not required to defend himself. But that does not mean that judges should turn the courtroom and proceedings over to him for whatever purpose he may desire. The responsibility of the judiciary is to assure a fair trial and to uphold the integrity of the process. In addition to appointing counsel over the objections of an accused, the 442  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

court should have the option to appoint standby counsel and amici curiae, both of which the court wisely used in the Milosevic trial. In any case where the accused refuses to recognize the legitimacy of the process and asserts that he is not bound by its rules, counsel should be appointed to represent him.

Because the vast majority of victims and survivors of the Balkan wars could not attend the trials, their interests were sometimes overlooked—by the court, the prosecution, and the press. Had they been a visible presence, they would have lessened the almost exclusive focus on the rights of the accused. A significant part of the press argued for the pro se rights of the accused, with little or no concern for the victims’ interests in the trial—a thorough airing of the evidence in a timely manner, with a well-reasoned conclusion. As Drumbl put it: “If the defendant can make the trial all about himself, and selfishly control the stage through grandstanding and histrionics, then the proceedings drift away from the victims and their terrible losses.”34 A strengthening of the rights of victims can be accomplished without weakening the rights of the accused. ICC rules on victims’ rights may ameliorate this problem as victim representatives are allowed to participate actively in the trial.35 Victim testimony necessarily has to be limited in leadership cases where the focus is on connecting the leader to crimes, rarely a direct route. But their testimony must not be so limited as to relegate them and the tragedies that befell them to a minor role. The harm to victims is the central salient fact of the trials.36 War crimes tribunals will continue to struggle against claims of state sovereignty. The prosecution in the Milosevic case tried for years to obtain documents and access to archives from the government of Serbia—and was stonewalled. In part Belgrade withheld documents because it did not want them in the public arena, where Bosnia could use them in its suit against Serbia at the International Court of Justice. When the prosecution sought assistance from the court it most often deferred to the state, giving it more time to produce the requested documents. As a result some of the documents were provided so late as to be useless. The court bears responsibility too, for having adhered to a strict construction of the rules, keeping important evidence out (e.g. the Skorpion videotape).37 Even when admitted, significant evidence of Serbia’s and Milosevic’s involvement in the Srebrenica genocide was kept from public view, contributing to a miscarriage of justice in Bosnia’s C o n c l u s i o n s a n d R e c o m m e n d at i o n s   443

case before the ICJ and a distorted record of Milosevic’s trial. In the end the decision to withhold evidence was a decision to protect the interests of culpable parties at the expense of victims. Tribunals need to take a firm stand to obtain all evidence necessary for informed decisions. They should not defer to sovereignty on this issue.38 The UN should back them up.39 Equally important, neither the court nor the prosecution should agree to keep significant evidence out of public view unless the requesting state proves that disclosure will harm national security interests, as required by ICTY Rule 54 bis. Serbia was not the only state to play the sovereignty card. The United States put excessively stringent conditions on present and former government officials whose testimony was sought. According to inside sources, others were prevented from testifying altogether, including Al Gore, the former vice president,40 and still others resisted for their own reasons, including Secretary of State Madeleine Albright41 and Ambassador Christopher Hill.42 In the Kosova phase of the case the court agreed that questions about the NATO campaign were off limits for cross-examination. To the extent that questions about NATO’s role in the Kosova war were relevant to a defense that Serbia was only defending itself, or that NATO and not Serb forces caused damage and the flight of the population, these questions should have been permitted. The problem, of course, is that states will not always allow their officials and former officials to testify under such conditions. If they refuse, the tribunal has little recourse except to apply to the United Nations Security Council, where a permanent member can block access. But first, the court must stand up to recalcitrant states. Where witnesses refuse a court order or subpoena or choose to boycott the trial, the court should use its contempt power and consider directing it first at defiant officials, since using it against them is likely to have more impact. The Milosevic trial chamber learned from experience with the witness boycott of 2004 and promptly initiated contempt proceedings against Kosta Bulatovic when he refused to be examined in Milosevic’s absence in 2005. The chief prosecutor’s former spokeswoman suggests that the United States obstructed the trial by withholding evidence and altering transcripts.43 Even more seriously, she accuses the United States and the United Kingdom of ordering their nationals who worked at the tribunal to deflect responsibility away from Milosevic on the Srebrenica genocide charge and drop the charge altogether. She also alleges that the United States and NATO prevented the arrest of Karadzic and Mladic, the men most responsible besides Milosevic for war crimes in the former Yugoslavia, and secured an end to the

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tribunal in 2008 (for trials) and 2010 (for appeals) in exchange for Serbia’s compliance with its international obligation to hand over some eighty war crimes suspects.44 These are very serious accusations. If true, they undermine the independence and integrity of the tribunal as well as individuals associated with it. At present the accusations have not been substantiated. To what extent are they influenced by well-known personal feuds and to what extent are they true? Bureaucracies, especially those under intense pressure, are hotbeds of gossip and innuendo. Doubtless more players will publish their version of events behind the tribunal’s revolving doors. The finger pointing is unlikely to resolve anything. The future of international justice, in particular at the ICC, requires an independent investigation to assure that political influence is exposed and ultimately eradicated. It is harmful enough that major states like the United States, Russia, and China refuse to subject their nationals to the regime of international humanitarian law embodied by the ICC. If the United States and other states actively seek to influence the law that is applied to others, the institutions must develop and institutionalize ways to resist. Otherwise international humanitarian law becomes just one more venue for political intrigue. Further inroads on national sovereignty will not come easily or soon, particularly when states most likely to limit cooperation are those with power to veto any attempt to secure assistance from the UN Security Council. Nevertheless, the majority of states have relinquished significant sovereignty in the arena of violations of universally recognized human rights. States have bound themselves and their citizens to refrain from torture, apartheid, slavery, genocide, crimes of war, and other egregious human rights violations. Their contract is with the community beyond the state’s borders. Those who violate these prescriptions violate international law and subject themselves to punishment in an international arena. Creating a “Shared Moral Universe”

While some argue that the only purpose of a criminal trial is to determine the guilt or innocence of one person, that oversimplifies the issue when the one person is a Hitler, Stalin, or Milosevic, who committed crimes not only against individuals but also against humanity, attacking the essence of our ability to live peacefully together in community, as well as bearing responsibility for egregious violence. War crimes trials are necessarily public events. Even more than domestic trials they serve to reestablish order when a society totters on the edge of chaos. As Pierre Hazan writes about the ICC,

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“The international court’s mission is to erect a boundary between barbarism and civilization.”45 And Erna Paris observes: “By reminding both victor and vanquished of ‘transgression,’ the Nuremberg Court helped human beings reconnect with one another in a shared moral universe.”46 While critiques of judicial and prosecutorial action are legitimate and useful, it is equally important to acknowledge the tremendous efforts and great personal sacrifices made by the judges, prosecutors, amici, defense attorneys, and other court personnel to establish accountability for crimes that offend our sense of what it means to be human. Their mistakes as well as their successes have advanced the cause of international justice significantly. More analysis and less blame is required. For those who desire a rules-based international order that protects human rights and dignity, the lessons of the Milosevic trial should be used to advance, not undermine it. As the eminent international jurist Lord Geoffrey Robertson said about forays into international justice: “Many mistakes have been made, particularly with the inefficiency and expense in some new courts. I do think, however, that justice will have its own momentum and in time we will look back on these problems as teething troubles, and future generations will be amazed that we let people like Pol Pot, Augusto Pinochet, and Idi Amin live happily ever after their tyranny.”47 After Milosevic’s death the Center for Balkan Development stated in part: “The concept of international justice is just that, a concept. Without it, the world becomes a much more fearful place with no recourse against a long list of maniacal individuals such as Adolf Hitler, Pol Pot, Saddam Hussein, Mobutu Sese Seko, Stalin, et al. As with domestic institutions of justice, international justice requires constant vigilance against erosion. While the victims of Milosevic’s war put tremendous hope in the tribunal, they were frequently disappointed by the light sentences given to perpetrators of war crimes, genocide and crimes against humanity, and the painstaking slow progress of the Milosevic trial. This only demonstrates how much work is still to be done in developing institutions of justice and is a reminder of why the permanent International Criminal Court is so important.”48 The trial of Slobodan Milosevic was neither a failure nor a farce. It was flawed, as all justice, being a creation of flawed humanity, inevitably is. But it was an important step on the road to somewhere worth creating. We must ask ourselves where we want to put all our glorious human talent and energy. Into making a “perfect” war or creating a workable, though imperfect, international justice system? Which effort is more likely to lead to the kind of world we want to live in and bequeath to future generations? 446  C o n c l u s i o n s a n d R e c o m m e n d at i o n s

It is up to us to use the lessons of the Milosevic trial to advance a system of international justice that will protect human rights. As Justice Robert H. Jackson, chief prosecutor for the International Military Tribunal at Nuremberg, said more than half a century ago, “You cannot in human experience rush into the light. You have to go through the twilight into the broadening day before the noon comes and the full sun is on the landscape.”49

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Afterword

While it is not the purpose of this book to assess the overall fairness of the nascent international justice regime, it is important for me, as a United States citizen, to acknowledge that my fellow citizens too have committed war crimes, while the United States has exempted itself from the jurisdiction of the International Criminal Court. Government officials at the highest levels have been accused of violating international humanitarian law, most recently in connection with the Iraq war, the torture of prisoners at Abu Ghraib, and the detention of hundreds of men and boys at Guantánamo Bay, Cuba, without due process of law. Because of its power in relation to other states, the United States has been able to protect its civil and military officials from international accountability, as have officials in other powerful states like China and Russia. Nor has the United States attempted to hold high officials accountable in its domestic courts. Selective application threatens to undermine the developing system of international justice. The answer is not to wash our hands of an unfair system but to work harder at making it fair. The alternative is unacceptable: war, atrocities, crimes against humanity, genocide with no meaningful response by the world community. The hope is that ending impunity for the few will lead to a widely accepted norm that will in turn lead to the universal application of international justice. There are times when we must act “as if ” in order to one day make our hopes real. It is a beginning on the long road to ending impunity. The only way to get to the end is step by stumbling step. The risks of the journey are well worth taking.

App e n d i x I  Law o f t he T r i b u n a l

ICTY Statute The ICTY statute gives the tribunal authority over Grave Breaches of the Geneva Conventions of 1949 (article 2), Violations of the Laws or Customs of War (article 3), Genocide (article 4), and Crimes against Humanity (article 5). The tribunal does not have jurisdiction over common crimes such as murder, robbery, and rape, unless they are committed during armed conflict. Articles 2, 3, and 5 all require that to be punishable by the ICTY, crimes must occur in an armed conflict.1 Article 5 requires the existence of a widespread or systematic attack against a civilian population. The prosecution must also prove that the accused knew about the wider context in which his or her conduct occurred. For a violation of article 2 (Grave Breaches) to come within the tribunal’s jurisdiction, the armed conflict must be international, which is not the case for violations of articles 3, 4, and 5. Under ICTY jurisprudence a connection between the criminal conduct and an armed conflict must also exist. An individual is protected under articles 2 and 3 when he or she is taking no active part in the hostilities. Article 5, Crimes against Humanity, protects civilians.2 Article 2: Grave Breaches of the Geneva Conventions of 1949 The ICTY has the power to prosecute persons committing or ordering to be committed the following acts: (a) Willful killing; (b) Torture or inhuman treatment, including biological experiments; (c) Willfully causing great suffering or serious injury to body or health; (d) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) Compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f ) Willfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) Unlawful deportation or transfer or unlawful confinement of a civilian; (h) Taking civilians as hostages.

Article 3: Violations of the Laws or Customs of War These violations include, but are not limited to: (a) Employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) Wanton destruction of cities, towns, or villages, or devastation not justified by military necessity; (c) Attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) Seizure of, destruction, or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments, and works of art and science; (e) Plunder of public or private property. Article 4: Genocide .  .  .  .  .  .  .  . 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. [emphasis added] Comment: The five enumerated acts are criminal in and of themselves. They become the crime of genocide when committed with genocidal intent. 3. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. Comment: While the acts may be understood as ways of committing genocide, they are also individual crimes. Each requires a showing of genocidal intent. Article 5: Crimes against Humanity The international Tribunal has the power to prosecute persons responsible for the following crimes: (a) murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f ) torture, (g) rape, (h) persecutions on political, racial, and religious grounds, (i) other inhumane acts. Comment: Extermination is distinguished from genocide in that it does not require an intent to destroy a substantial part of a protected group. The acts of the accused must be part of a widespread or systematic attack directed against any civilian population.

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Persecution, however, requires an intent to discriminate against a protected group. Acts may include any of the crimes listed in article 5 but are not limited to them. Discriminatory intent is often derived from circumstantial evidence in the same way that genocidal intent is, and some of the indicators may be the same (use of pejorative names, making threats against the group). Criminal acts of murder, extermination, widespread property destruction, multiple rapes, torture, and beatings may look a lot like genocide when they are systematic, repeated, and directed against a particular group. It is difficult to determine whether these acts are circumstantial evidence of an intent to persecute or an intent to destroy. The tribunal has held that for the acts to constitute genocide, intent to destroy must be the only reasonable inference to be drawn from the circumstantial evidence. The ICTY Statute defines who is responsible for crimes under its jurisdiction: Article 7: Individual Criminal Responsibility 1. A person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. Comment: On its face, paragraph 1 applies to article 4, Genocide. Conviction for aiding and abetting genocide does not require proof of genocidal intent, only knowledge of the genocidal intent of others and awareness that one’s actions are furthering genocide. If a person aids and abets genocide with genocidal intent, he or she is guilty of complicity in genocide. 2. The official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility and mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. Comment: This section is commonly referred to as establishing command (or superior) responsibility. On its face paragraph 3 applies to article 4, Genocide. 4. The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Joint Criminal Enterprise Joint criminal enterprise liability is a form of individual responsibility that the tribunal has found to exist implicitly under article 7(1) of the ICTY statute.3 Also called the “common purpose doctrine,” it is based on the theory that whoever contributes to the commission of a crime in pursuit of a common purpose may be held criminally liable.4 Law o f t he T r i b u n a l   453

The tribunal identified three categories of joint criminal enterprise liability: (1) basic, where all perpetrators have the same intent to carry out the common criminal purpose; (2) systemic, characterized by existence of an organized criminal system, such as a concentration camp—liability requires personal knowledge of the system and an intent to further its criminal purpose; (3) extended, where one is held responsible for crimes that go beyond the common purpose but are natural and foreseeable consequences of it. Liability for category 3 joint criminal enterprise requires that the accused intended to participate in and contribute to the criminal purpose and knew that another group member might perpetrate another crime, yet willingly took the risk by joining in or continuing to participate in the criminal enterprise.5 Milosevic was charged with individual criminal responsibility through participation in a joint criminal enterprise in all three indictments. For crimes in Bosnia and Croatia he was charged under all three categories of joint criminal enterprise. In Kosova he was charged under categories 1 and 3. His co-perpetrators varied over time and geographical focus. The purpose shifted from the forcible removal of Croats and other non-Serbs from one-third of Croatia (1991) to the forcible and permanent removal of a majority of Muslims and Croats from two-thirds of Bosnia so that it could be annexed to Serbia (1991–95) to the expulsion of a substantial portion of the Albanian population from Kosova to ensure continued Serbian control over the province (1998, 1999). The one continuous element in the joint criminal enterprise was Slobodan Milosevic.

Command Responsibility The command responsibility theory is often misunderstood. It does not mean that any commander is automatically guilty for crimes committed by a subordinate. In fact he or she is not guilty of the subordinates’ crimes at all.6 A commander violates article 7(3) for failing in his or her duty to exercise control over subordinates who thereby commit crimes prohibited by international law, such as murder, persecution, or torture. A commander is invested with power. International law and the ICTY statute charge such a person with responsibility to insure adherence to the important principles enshrined in the Geneva Conventions and other international treaties. A commander also violates article 7(3) by failing to discipline a subordinate after learning that he or she has committed a crime. Again, the commander’s crime is a failure of duty. For a commander to be held responsible under article 7(3), he or she must know or have reason to know about the subordinate’s crime. Where a human rights organization or the media report a massacre to the general public or relevant authorities, the authorities, whether civilian or military, must take reasonable and appropriate action. What is reasonable and appropriate may vary with the situation and the position of the commander, but in most cases would include a thorough and effective investigation, followed by prosecutorial and judicial proceedings if called for. Milosevic’s police and military commanders often saw their duties ending with the investigation or arrest. Milosevic’s duties were not so curtailed. He was commander in chief of the army to which the police were subordinated, and according to substantial testimony the man with ultimate power in the state. Referral to a prosecutor who then dismisses nine out of

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ten cases or to a judiciary that releases soldiers convicted of murder after a few months’ imprisonment shows a system that does not take the Geneva Conventions seriously. Similarly, where a president issues an order to release inmates with violent histories from prison to fight in a war and those inmates commit violent crimes, the president can be held responsible because it is reasonable to expect that they would act that way. In Prosecutor v. Halilovic an ICTY trial chamber listed the following nonexclusive factors to determine if a commander’s actions were reasonable and necessary: —whether specific orders prohibiting or stopping the criminal activities were issued, —what measures to secure the implementation of these orders were taken, —what other measures were taken to ensure the unlawful acts were interrupted, —whether these measures were reasonably sufficient in the specific circumstances, —after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice.7 The tribunal addressed the issue of Command Responsibility in the Celebici case, in which four Bosnian Muslims and Croats who had various positions of authority in the Celebici prison camp were charged with war crimes. The convictions of three, including convictions for crimes committed by their subordinates, were upheld on appeal. For command responsibility under article 7(3), the court held it sufficient if the commander has information of a general nature that his subordinates have committed or may have committed war crimes. He is then put on “inquiry notice,” i.e. he is required to inquire further to determine whether crimes have actually been committed. If he does not do so he can be held liable under article 7(3). Moreover, actual knowledge can be inferred from the circumstances, such as the number of crimes, the number of troops involved, etc.

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App e n d i x II  L i s t o f D e f e n se W i t n e s s e s



7, 8 September 2004 Avramov, Professor Smilja



8, 9 September 2004 Jatras, James



14 September 2004 Keith, Roland



12, 13 October 2004 Hutsch, Franz-Josef



19 October 2004 Kanelli, Liana



16, 17 November 2004 Markovic, Mihajlo



22, 23 November 2004 Ryzhkov, Nikolai



23, 24 November 2004 Ivashov, Leonid Gregorovich



30 November 2004 Primakov, Yevgeny

30 November and 1, 2 December Jokanovic, Vukasin

6, 7, 9 December 2004 Terzic, Slavenko



9, 15, 16 December 2004 Popov, Cedomir



16, 17 December 2004 Mihajlovic, Kosta



11 January 2005 Crepin, Eve



11, 12 January 2005 Barriot, Patrick



13, 18–20, 24, 25 January Markovic, Ratko

25, 26 January and 8, 9 February Balevic, Mitar

26 January 2005 Adam, Bo 14, 16, 22, 23 February Jovanovic, Vladislav 23, 24, 28 February 2005 Andric, Vukasin

28 February and 1 March 2005 Aleksovski, Dr. Dobre

1 March 2005 Stojcik, Goran



3 March 2005 Babik, Mirko



3, 8, 9 March 2005 Hartwig, Dietmar



9, 10, 14 March 2005 Lituchy, Barry 15, 16, 22 March 2005 Gojovic, Radomir



22–24 March and 6, 7 April Marinkovic, Danica 7, 8, 12, 13 April 2005 Dobricanin, Slavisa 14, 19, 20, 25 April 2005 Bulatovic, Kosta 25–27 April 2005 Jasovic, Dragan



27 April 2005 Gvozdenovic, Zvonko



4–6, 9, 10 May 2005 Paponjak, Radovan



11, 17–19, 25–27, 31 May and Stevanovic, General Obrad 1, 2, 6–8, 15 June



15–17, 20, 21 June 2005 Jasovic, Dragan

21, 22, 29, 30 June, 1, 5–7, 11–13, Delic, General Bozidar 18–20 July, and 20, 21, 28, 29 September 2005

17, 18 August 2005 Ibraj, Muharem 18, 19 August 2005 Fazliu, Saban 19, 23–25, 30, 31 August and Seselj, Vojislav 1, 5–7, 14–16 September 21, 22, 28–30 September and Janicevic, Gobuljub 3–5, 18 October

18–20, 25, 26, 31 October 2005 Djosan, General Milos

26, 27, 31 October and Vukovic, Colonel Vlatko 1, 2, 9 November 2005 9, 10 November 2005 Farkas, General Geza 15 November 2005 Sarvanovic, Captain Husein 15, 16 November 2005 Odak, Zlatko



30 November and Sel, Lt. Colonel Janos 8, 12 December



1, 6–8 December 2005 Jelic, General Krsman



23–25 January 2006 Kotur, Colonel Milan 25 January and 1, 2, 6–8, Kostic, Branko 13–15 February 2006 3 February 2006 Prentice, Eve-Ann 15, 22, 23 February 2006 Atlagic, Marko 23, 24 February 2006 Bissett, James 27, 28 February and 1 March Jarcevic, Slobodan



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1 March 2006 Mahon, Alice

App e n d i x III  C h r o n o l o g y





1389 Battle of Kosovo Polje April 1941 Hitler attacks Yugoslavia, followed by state’s quick collapse. Axis powers create Independent State of Croatia and install Ustasha leader, Ante Pavelic. Ustashas launch genocide campaign against Serbs, Jews, and Roma. 20 August 1941 Slobodan Milosevic born in Pozarevac, Serbia. January 1959 Milosevic joins Communist Party of Yugoslavia. 14 March 1965 Milosevic marries Mira Markovic. 1968 Demonstrations in Pristina, Kosovo 1974 Decentralized Yugoslav constitution adopted. 4 May 1980 Josip Broz (“Tito”) dies.



1981 Demonstrations in Kosova suppressed by military.



1986 SANU Memorandum leaked.

Milosevic becomes president of League of Communists of Serbia.

April 1987 Milosevic’s “No one should dare beat you” speech to Kosovo Serbs. September 1987 Milosevic sidelines his mentor in LCS, Ivan Stambolic.



July 1988–March 1989 Anti-Bureaucratic Revolution in Vojvodina and Montenegro results in seizure of power by proMilosevic officials.



17 November 1988 Dismissal of high-ranking Kosova Albanian political figures, replaced by Milosevic loyalists.



1989 JNA reorganized, reducing number of military districts from six to three and redrawing boundaries so that they no longer coincide with

republic boundaries, thus lessening republic influence over JNA.

March 1989 Kosova’s autonomy revoked; demonstrations result in killings.



17 June 1989 Founding party congress for HDZ, with Franjo Tudjman as president.



28 June 1989 Milosevic speaks at six hundredth anniversary of Battle of Kosovo Polje.



December 1989 Ibrahim Rugova founds LDK. 6 December 1989 Milosevic elected President of Serbia.



January 1990 League of Communists of Yugoslavia ends when Slovenes and Croats walk out.



17 February 1990 Serbian Democratic Party (SDS) founded in Croatia.



21 February 1990 State of emergency declared in Kosova; tanks and armored vehicles quell demonstrations; thirtythree Kosova Albanian demonstrators killed. April 1990 Tudjman’s Croatian Democratic Union (HDZ) wins first multiparty elections in Croatia.



7–8 April 1990 Slovenia forms non-Communist government; reformed Communist leader Milan Kucan elected president.



May 1990 New Serbian Constitution adopted.



May 1990 SDS of Slavonia established.



May 1990 Babic establishes Association of Serbian Municipalities in Croatia: Knin, Obrovac, Dvor, Vojnic, Donji Lapac.



14 May 1990 JNA Chief of General Staff Blagoje Adzic orders confiscation and storage of TO arms and ammunition in JNA facilities.



26 May 1990 SDA founded in Sarajevo with Alija Izetbegovic as president.



31 May 1990 Croatian Assembly elects Tudjman president.



summer–fall 1990 SDS branches established throughout Bosnia.



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July 1990 Milan Martic begins to heavily arm parallel Serbian police force in Croatia, known as Martic’s police. 2 July 1990 Serbian police block Albanian Assembly delegates from entering building; delegates hold street session, adopt Constitutional Declaration proclaiming Kosova a republic in the SFRY.



5 July 1990 Serbia’s Assembly annuls Government and Assembly of Kosovo.



12 July 1990 SDS founded in Sarajevo with Radovan Karadzic as president.



25 July 1990 Croatian Serb Declaration on the Sovereignty and Autonomy of the Serbian People, establishing Serbian Assembly and Serbian National Council.



31 July 1990 Milan Babic elected president of Serbian National Council in Croatia.



August 1990 Tudjman appoints Stipe Mesic to represent Croatia on SFRY presidency.



17 August 1990 Croatian police begin disarming police stations in predominantly Serb municipalities. Milan Martic’s police seize reserve police arms and erect barricades. Babic declares war with Croatia.



19 August 1990 Krajina Serb referendum on autonomy: 99.97 percent in favor of Serbian autonomy; Croats not invited to vote.



25 August 1990 Autonomous Province of Serb Krajina (RSK) established.



September 1990 “Log Revolution” in Serb-majority parts of Croatia. 7 September 1990 Kosovo Assembly adopts constitution of Republic of Kosova.



December 1990 Slovenia decides to leave SFRY in six months.



8 December 1990 Milosevic elected president of the Republic of Serbia, serving until 23 July 1997.



21 December 1990 Declaration establishing Serbian Autonomous District of Krajina (SAO Krajina) in Croatia.



22 December 1990 Croatia adopts new constitution, reducing Serbs’ status to minority.



24 December 1990 Momir Bulatovic elected president of the Republic of Montenegro.



28 December 1990 Serbia loots primary currency from National Bank of Yugoslavia.



4 January 1991 SAO Krajina establishes Secretariat of Internal Affairs (SUP), headed by Milan Martic.



7 January 1991 Serbian National Council for SBWS formed in Srpski Banovci.



25 January 1991 Macedonian Assembly issues Declaration of Independence.

C h r o n o l o g y   461



25 February 1991 Serbian Radical Party established in Serbia.



26 February 1991 SNC of SBWS adopts Declaration on Sovereign Autonomy of Serbs, proclaiming Serbs in Croatia to be sovereign people.



28 February 1991 SAO Krajina disassociates from Croatia.



March 1991 Jovica Stanisic assumes position of chief of SDB until he is dismissed in October 1998.



March 1991 Martic’s police take control of Plitvice National Park. 9 March 1991 Anti-Milosevic demonstrations in Belgrade broken up by JNA tanks.



12–13 March 1991 Attempt to have SFRY presidency declare state of emergency fails.



15 March 1991 Serb Autonomous Region of Krajina proclaims independence from Croatia.



16 March 1991 Milosevic proclaims Yugoslavia finished; Serbia will no longer be bound by federal bodies.



25 March 1991 Milosevic and Tudjman meet at Karadjordjevo to divide Bosnia.



31 March 1991 Croatian police confront Martic’s police at Plitvice. JNA enters area to impose ceasefire.



April 1991 Serbian MUP set up training camps for volunteers and paramilitaries in SAO Krajina and SBWS.



1 April 1991 SAO Krajina passes resolution to incorporate into Serbia and recognize its laws and constitution.



30 April 1991 Milan Babic elected president of executive council of SAO Krajina.



15 May 1991 Croatian Representative Stjepan Mesic prevented from assuming president of SFRY presidency.



29 May 1991 SAO Krajina adopts law seceding from Croatia.

Milan Martic elected minister of defense of SAO Krajina. Milan Babic elected president of government of SAO Krajina.

25 June 1991 Slovenia and Croatia declare independence.

SAO SBWS secedes from Croatia. Goran Hadzic elected prime minister.

462   A pp e n d i x III

27 June 1991 JNA moves into Slovenia. Conflict begins. 1 July 1991 With international pressure, Mesic assumes president of SFRY presidency.



5 July 1991 EC declares arms embargo against SFRY. 7 July 1991 Brioni agreement ends fighting in Slovenia. 18 July 1991 SFRY presidency withdraws JNA from Slovenia.



13 August 1991 SAO Western Slavonia established.



25 August 1991 Milan Martic becomes commander of all armed forces and the TO of SAO Krajina.



7 September 1991 Hague Peace Conference opens, led by EC (Lord Carrington).



15 September 1991 Croatia surrounds JNA barracks.



19 September 1991 Beginning of large-scale JNA invasion of Croatia from Serbia.



25 September 1991 UN imposes arms embargo on all republics of SFRY.



29 September 1991 Coup attempt against Veljko Kadijevic, federal secretary for national defense, fails when JNA Chief of General Staff Blagoje Adzic refuses to take over position.



1 October 1991 Rump presidency of SFRY illegally declares imminent threat of war; remains in effect until 22 May 1992.

Montenegro commits resources to fight in Dubrovnik.

7 October 1991 Slovenia and Croatia activate declaration of independence after three-month moratorium. 14–15 October 1991 SDS and Bosnian Serb leadership initiate parallel institutions throughout Bosnia. 18 October 1991 Plenary Session of Hague Conference convenes.

Montenegro temporarily defies Serbia, accepts Carrington’s proposal.

24 October 1991 Bosnian Serbs walk out of BiH Assembly, set up their own. 9–10 November 1991 Bosnian Serbs vote to remain in Yugoslavia. 15 November 1991 Vukovar falls after three-month siege.



18 November 1991 Croatian community of Herzeg-Bosna established.



20 November 1991 Bosnia requests UN troops.



23 November 1991 Milosevic, Kadijevic, and Tudjman sign Vance Plan.



6 December 1991 Fiercest attack on Dubrovnik after ceasefire agreement.

C h r o n o l o g y   463



9 December 1991 EC Badinter Commission concludes that SFRY is in process of dissolution.



11 December 1991 Bosnian Serb Assembly authorizes separate Serb municipal assemblies throughout Bosnia, creating parallel Serb structure in Bosnia.



16 December 1991 EC declares that it will recognize independence of all Yugoslav republics that request it. All except Serbia and Montenegro respond, including Kosova. Serbia and Montenegro claim sole right of succession to SFRY.



19 December 1991 SAO Krajina proclaims itself Republic of Serb Krajina (RSK), with Milan Babic as president.



19–20 December Bosnian SDS inaugurates top-secret plan, issuing instructions to all party levels at meeting in Sarajevo.



21 December 1991 Bosnian Serbs establish Serb Republic of BiH, with Radovan Karadzic as president.



23 December 1991 Germany recognizes independence of Slovenia and Croatia.



26 December 1991 SAO Western Slavonia and SAO Slavonia, Baranja, and Western Srem join RSK in unilateral declarations.



2 January 1992 Vance agreement ends fighting in Croatia.



8 January 1992 UNSC authorizes UNPROFOR as peace force in Croatia.



9 January 1992 Proclamation of Serb Republic of BosniaHerzegovina (RS).



11 January 1992 EC’s Badinter Commission Report on recognizing new states from SFRY: for Slovenia and Macedonia unconditionally; for Croatia, conditional on minority rights; against Bosnia-Herzegovina.



15 January 1992 EU recognizes Slovenia and Croatia, directs Bosnia to hold referendum on independence.



14 February 1992 International conference on Bosnia begins in Sarajevo, led by Jose Cutileiro of EU.



16 February 1992 Milosevic ousts Babic as president of RSK for not accepting Vance Plan.



21 February 1992 UNPROFOR deployed to Croatia.



26 February 1992 SAO Western Slavonia joins SAO Krajina and SAO Slavonia, Baranja, and Eastern Srem to form

464   A pp e n d i x III

Republic of Serb Krajina (RSK). Goran Hadzic becomes president.

28 February 1992 Biljana Plavsic and Nikola Koljevic become acting presidents of Republika Srpska. 29 February–1 March 1992 Bosnia referendum favors independence by 93 percent, with Serbs boycotting.



12 March 1992 Milosevic, Borisav Jovic, Adzic, and Kadijevic mount unsuccessful attempt to declare state of emergency in SFRY.



18 March 1992 Cutileiro Plan preserves Bosnia’s borders with administrative decentralization.



24 March 1992 Assembly of Serbs in Bosnia declares against Bosnian independence.



27 March 1992 RS Assembly establishes National Security Council, consisting of Radovan Karadzic, Biljana Plavsic, Momcilo Krajisnik, and Nikola Koljevic as decision-making body.



31 March 1992 Bosnian Serb authorities establish separate MUP.

Bosnian Serbs begin takeovers of municipalities with Bijeljina, where forty-eight civilians are killed.

April 1992 Karadzic orders municipal crisis staffs to begin functioning as local organs of RS state.



1 April 1992 Takeover of police stations on territories claimed by Serbs in RS.



1–3 April 1992 Arkan’s volunteers, under direction of JNA, occupy Bijeljina, begin killing and ethnic cleansing of Bosniak civilians.



5 April 1992 SDS armed and masked men set up barricades in Sarajevo.



6 April 1992 European Community recognizes BosniaHerzegovina.



7 April 1992 United States recognizes Bosnia-Herzegovina.



8 April 1992 Bosnian Presidency proclaims immediate threat of war.



15 April 1992 Bosnian army officially established.



27 April 1992 FRY (Serbia and Montenegro) constitution adopted, abolishing SFRY presidency.



30 April 1992 Milosevic and Borisav Jovic agree to Ratko Mladic as commander of RS main staff.



May 1992 JNA officially recalled from newly independent C h r o n o l o g y   465

Bosnia to Serbia, where it is transformed into the VJ (Army of the FRY).

2 May 1992 JNA seizes Izetbegovic at Sarajevo airport on return from Lisbon negotiations; JNA attempt to divide Sarajevo fails.



2–3 May 1992 Mass killings and ethnic cleansing of non-Serbs begin in Bosnian Krajina. Bosnian Serbs establish concentration camps.



4 May 1992 Bosnia calls for international intervention against Serbia’s aggression.



12 May 1992 RS Assembly proclaims VRS; Ratko Mladic named as commander of main staff; replaces acting presidents with three-member presidency consisting of Karadzic, Plavsic, and Koljevic.



27 May 1992 Shells from VRS positions land on bread line in Sarajevo, killing approximately twenty, injuring a hundred.



30 May 1992 UNSC imposes sanctions on FRY for failure to implement Resolution 752, requiring in part demilitarization or withdrawal of JNA from Bosnia.



2 June 1992 RS presidency expanded to include president of government and president of Assembly, Momcilo Krajisnik.



15 June 1992 Dobrica Cosic selected president of FRY, with Milan Panic as prime Minister. FRY Supreme Defence Counsel, with Milosevic as a member, begins exercising authority.



20 June 1992 Bosnian presidency proclaims state of war, orders general mobilization.



3 September 1992 New Conference on Yugoslavia begins, led by Lord David Owen and Cyrus Vance. 14 September 1992 UNSC authorizes sending peace forces to Bosnia.



October 1992 Serbian MUP forcibly takes over Federal MUP.



October 1992 Formation of 7th Muslim Brigade with foreign mujahideen.



29 October 1992 Joint Bosniak-Muslim defense breaks up.



December 1992 Milosevic defeats Panic in questionable election.



17 December 1992 RS Assembly replaces expanded presidency with single president (Karadzic) and two vice presidents (Plavsic and Koljevic).

466   A pp e n d i x III



2 January 1993 Vance and Owen plan to recompose Bosnia into ten ethnically based provinces.



10 February 1993 Conflict begins between Bosnian army and HVO in central Bosnia.



11 March 1993 Major VRS offensive against Srebrenica. 8 April 1993 International Court of Justice issues preliminary order to the FRY to use all means to prevent genocide in Bosnia.



12 April 1993 VRS attack kills fifty-six civilians in Srebrenica.



16 April 1993 UNSC proclaims Srebrenica a “safe area.”



May 1993 RS Assembly rejects Vance-Owen Plan.



6 May 1993 FRY announces suspension of military aid to VRS after rejection of Vance-Owen Plan. UNSC creates five more “safe areas”: Sarajevo, Tuzla, Zepa, Gorazde, and Bihac.



9 May 1993 HVO (Croatian Defence Council) and HV (Croatian Army) begin attack on Mostar, systematically destroy town, deport Bosniaks to camps.



25 May 1993 UNSC establishes International Tribunal for War Crimes Committed on the Territory of the Former Yugoslavia (ICTY).



30 May 1993 Croatian parliament recognizes sovereignty and unity of Bosnia.





4 June 1993 UNSC authorizes additional troops to protect “safe areas,” with mandate to use force in event of attack. 28 August 1993 Herzeg-Bosna proclaims state of Croats in Bosnia. 27 September 1993 Fikret Abdic proclaims “Autonomous Region of Western Bosnia”; attacks Bosnian 5th Corps; collaborates with VRS, SVK, and Croatia. 9 November 1993 HVO destroys Old Bridge at Mostar.



January 1994 Milan Martic replaces Goran Hadzic as president of RSK.



3 February 1994 UNSC calls for withdrawal of Croatian army from Bosnia.



5 February 1994 Mortar shell from Serb positions falls on Markale Marketplace in Sarajevo, killing sixty-eight people.



23 February 1994 Bosnian army and HVO agree on ceasefire.



18 March 1994 Bosnia and HVO end Croat-Bosniak war.



April 1994 Full-scale VRS attack on Gorazde 10–11 April 1994 NATO air strikes on VRS positions at Gorazde. C h r o n o l o g y   467



26 April 1994 Contact Group forms (United States, United Kingdom, Russia, Germany, France).



13 July 1994 Opposing Milosevic, RS rejects Contact Group Plan.



18 July 1994 Bosnia accepts Contact Group Plan.



August 1994 Milosevic announces blockade of RS, except humanitarian supplies.



10 November 1994 United States withdraws from monitoring arms embargo against Bosnia.



21 November 1994 NATO bombs airport from which RSK airplanes have been attacking Bihac.



23 November 1994 NATO bombs three VRS missile sites in northwestern Bosnia.



24 November 1994 VRS takes 250 UN troops hostage.



30 January 1995 RSK rejects Z-4 Plan to make RSK de facto state within Croatia.



24 April 1995 ICTY begins investigation of Karadzic and Mladic.



1–2 May 1995 Croatian army retakes remainder of Western Slavonia in Operation Flash.



2–3 May 1995 arsK (Martic) fires rockets at Zagreb, killing seven civilians.



25 May 1995 VRS shells Tuzla central square, killing seventyone, continues shelling Sarajevo. In response to threatened NATO air strikes VRS takes 350 UN peacekeepers hostage, to be used as human shields.



26 May 1995 NATO strikes RS headquarters in Pale.



6 July 1995 VRS attacks “safe area” of Srebrenica.



11 July 1995 Genocide begins in Srebrenica. 25 July 1995 VRS occupies Zepa, killing and expelling Bosniaks.



4–7 August 1995 Croatia mounts Operation Storm and retakes Krajina, ending RSK; 200,000 Croatian Serbs flee to Serbia.



28 August 1995 NATO bombs VRS after shell kills dozens in marketplace in Sarajevo.



September 1995 Ceasefire in Bosnia after peace agreement in Geneva.



19 September 1995 United States and western powers pressure Bosnian and Croatian armies to stop advance as it threatens proposed territorial division of Bosnia with Bosnian Serbs.

468   A pp e n d i x III



November 1995 Signing of Erdut Agreement, reintegrating Eastern Slavonia, Baranja, and Western Srem into Croatia.



1 November 1995 Negotiations to end Bosnian war begin at Dayton, Ohio.



14 December 1995 Tudjman, Izetbegovic, and Milosevic formally sign Dayton Accord.



mid-1996 KLA begins attacking police in Kosova; MUP forces retaliate.



July 1997 Milosevic becomes president of the FRY. February 1998 Serbian police massacre Jashari family.



March 1998 UN Security Council passes Resolution 1160, “condemning use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo”; imposes arms embargo on FRY.



Summer 1998 Several hundred thousand Kosovar Albanians flee homes after attack by Serb forces.



October 1998 Agreement between Holbrooke and Milosevic on ceasefire and drawdown of Serb forces in Kosova halts NATO attack.



15 January 1999 Serb forces attack Racak, killing forty-five.



6 February 1999 Negotiations between Serbs and Kosova Albanians begin in Rambouillet, France.



18 March 1999 Negotiations at Rambouillet and Paris end when Milosevic rejects plan for Kosova; Kosova Albanians sign agreement.



24 March 1999 NATO begins bombing the FRY; FRY steps up massive campaign of ethnic cleansing in Kosova.



11 April 1999 Slavko Curuvija, news magazine editor and critic of Milosevic, assassinated outside his home.



27 May 1999 ICTY indicts Milosevic for war crimes and crimes against humanity in Kosova.



3 June 1999 Milosevic accepts terms for ending war; Serb forces withdraw from Kosova; NATO enters. August 2000 Ivan Stambolic, Milosevic’s former mentor, disappears; body recovered after Djindjic’s assassination in 2003.



September 2000 Milosevic loses FRY elections to Vojislav Kostunica.



4 October 2000 Massive demonstrations in Belgrade cause Milosevic to accept defeat.

C h r o n o l o g y   469



31 March 2001 FRY authorities arrest Milosevic.



28 June 2001 Milosevic transferred to ICTY Detention Unit in The Hague. 12 February 2002 Trial begins: The Prosecutor v. Slobodan Milosevic. 12 March 2003 Serbian Prime Minister Zoran Djindjic assassinated.



23 February 2004 Presiding Judge Richard May resigns.



25 February 2004 Prosecution rests its case.



1 June 2004 Judge Iain Bonomy replaces Judge May.



16 June 2004 Trial Chamber denies defense motion for acquittal.



2 July 2004 Judge Sir Richard May dies. 31 August 2004 Defense case begins.



3 September 2004 Court appoints counsel (amici) to represent Milosevic.



7 September 2004 Appointed counsel begin direct examination.



13 October 2004 Court learns of witness boycott. 1 November 2004 Appeals panel rules Milosevic to head own case.



16 November 2004 Milosevic assumes direct examination.



20 December 2005 Accused requests provisional release for treatment in Moscow.



23 February 2006 Trial Chamber denies request for provisional release to Moscow.



6 March 2006 Babic commits suicide in UN Detention Unit.



11 March 2006 Milosevic found dead in his cell at UN Detention Unit.

470   A pp e n d i x III

Notes

Preface: A Personal Note 1. Women in Black for Peace originated with Israeli Jewish women, joined by Israeli Arab women, in 1988 to protest the Israeli occupation of Palestine, then twenty years long. Women in other countries adopted the name and the form of protest— silent vigils in public places with women wearing black: www.womeninblack.org/ history/html. In the former Yugoslavia women in Serbia established Zene U Crnom Beograd (Women in Black Belgrade) on 9 October 1991 in opposition to war and militarism. They held weekly protests in Republic Square throughout the wars and continue to protest war and violence in other parts of the world. Zene u Crnom Beograd is a feminist organization including male allies. “[Our] goal is to prevent conflicts, to resolve conflicts through dialogue, and above all instigating the active participation of women in the building of peace, in peaceful processes, and demilitarization.” www.zeneucrnom.org.

Introduction 1. Milosevic was indicted while he was president of the FRY, though only arrested after he was ousted from office. 2. The Nuremberg trials were not the first international effort to hold war criminals, including sovereigns, accountable. After the First World War the victorious states agreed in the Treaty of Versailles to try the German kaiser. Though the provision was obligatory, the states did nothing to implement it for fear that doing so would establish a precedent that could be applied to them. The Netherlands granted the kaiser asylum. 3. See Kochavi, Prelude to Nuremberg, 87–91, quoting Churchill’s and Roosevelt’s draft joint telegram asserting that the fate of the top Nazis was a political, not a judicial, question. See also Robertson, Crimes against Humanity, 211–13. 4. Three of the other accused were given life sentences, two a sentence of twenty years, one a sentence of fifteen years, and one a sentence of ten years. 5. The allies established the International Military Tribunal for the Far East, com-

panion to the Nuremberg court, to try twenty-eight Japanese military and political leaders for waging aggressive war and with direct and command responsibility for atrocities committed by Japanese troops. After two and a half years the tribunal, with a ten-judge majority and three dissenters, convicted all defendants save three (two died during the trial, the third was removed because of his mental condition). For a defense of the tribunal’s fairness see Totani, The Tokyo War Crimes Trial. The separate trial of General Tomojuki Yamashito was the most politically motivated and unfair criminal proceeding in the aftermath of the Second World War. Largely at General Douglas MacArthur’s insistence that an example should be made of a military leader, Yamashito was tried and convicted for crimes committed by his troops, despite lack of evidence that he knew (or should have known) anything about them. This was a “strict liability” theory of command responsibility, exceeding the general understanding that a commander must have some knowledge or reason to have knowledge of his subordinates’ crimes and do nothing to prevent or punish them. 6. A year later, in 1994, genocide erupted on the African continent in a hundred-day killing spree by the Hutus that left 800,000 Tutsis and politically moderate Hutus dead. The UN, having created a tribunal for European victims, could do no less for African victims without facing the charge of racism. 7. A ceasefire in Croatia took effect in November 1991 but did not end the war. Some antiwar activists in Serbia viewed the Dayton Accords as merely a ceasefire which ended when war erupted in Kosova. 8. There is no way to measure what crimes the establishment of the tribunal might have prevented. Genocide of the Bosnian Muslims, notably at Srebrenica in July 1995, occurred after the UN created the ICTY. The international community’s lack of support for the tribunal in its early years encouraged Bosnian Serb leaders to see it as a paper tiger that they need not fear. The record shows that Bosnian Serb leaders considered the tribunal in their discussions and planning. There is some thought that Milosevic ended the Kosova War as a result of the indictment brought against him in May 1999. 9. Four Geneva Conventions (1949) and Protocols I and II (1977), UN Convention on the Prevention and Punishment of the Crime of Genocide (1951). 10. While diplomats ultimately negotiated an end to the fighting in Croatia and Bosnia, they did so only in November 1995, after the Srebrenica genocide had occurred and 100,000 people had lost their lives. By that time the ICTY had indicted Karadzic and Mladic. Fear of arrest kept them away from Dayton, Ohio, where negotiations were held. 11. Franjo Tudjman, president of Croatia, died on 10 December 1999, before an OTP indictment was issued against him. The chief ICTY prosecutor at the time, Carla Del Ponte, indicated that it was being prepared. Later Tudjman was named as a co-perpetrator in the ICTY indictment of General Ante Gotovina for crimes committed in the course of Operation Storm, in which 200,000 Serbs were ethnically cleansed from the Croatian Krajina. 12. The prosecutor later dropped the genocide charge from the Croatia indictment. 472  N o t e s

13. M. Cherif Bassiouni speculates that Milosevic was offered “some sort of de facto impunity” for brokering a peace deal at Dayton. He admits that there is no proof to date. Hazan, “Justice in a Time of War,” xv. Hazan himself reports a rumor that Richard Holbrooke made a deal with Milosevic, “guaranteeing immunity in return for his contribution to a peace accord.” The rumor is not unbelievable, he speculates, given that for many years the United States, Britain, and France failed to provide the tribunal with information on Milosevic that would support an indictment. Ibid., 67. Holbrooke denies any such deal. Milosevic did not raise the issue at trial. 14. Until 1996 Karadzic continued active involvement in RS politics, serving as president of the SDS, the ultra-nationalist party he had helped to found. In an agreement brokered by the United States envoy Richard Holbrooke and Milosevic, he removed himself from political life, allegedly in exchange for not being handed over to the ICTY. Holbrooke denies this. “Insiders, Cast as Outsiders—Speak!” Florence Hartmann, former press aide to ICTY Chief Prosecutor Carla Del Ponte, Sylvie Matton, author of Srebrenica: un génocide annoncé, and Ambassador Muhamed Sacirbey, Dayton signatory and former Bosnian ambassador to the UN, http://web.mac .com/morefreedombetter/, 16 September 2007; “Former UN Envoy Denies Promise of Karadzic’s Safety,” Fokus (Banja Luka weekly), 22 March 2007; “Holbrooke Deal with Karadzic and Mladic,” BBC Monitoring European, 4 January 2007 from Slobodna Bosna, 21 December 2006, 36–37; Dusan Stojanovic, “Karadzic’s Brother Claims US Breached Secret Deal with Top War Crimes Fugitive,” Associated Press, 26 March 2007. On 21 July 2008 Serbian police arrested Karadzic after thirteen years on the run. A Serbian court ordered his extradition to The Hague, where he arrived on 30 July, appearing in court the next day. Since his arrival he has continually raised the issue of the immunity deal allegedly brokered by Holbrooke. On 17 December 2008 Karadzic filed a motion asking the trial court to order the prosecution to produce information relevant to the alleged agreement. The trial court allowed the motion in part, stating that an immunity agreement, if it existed, could potentially be relevant at sentencing and only at sentencing—to counter arguments that Karadzic had been uncooperative by evading arrest for thirteen years (arguments that could stiffen his sentence). Otherwise, the court said, any immunity agreement would be invalid under international law. The appeals chamber affirmed on 6 April 2009. 15. In the winter of 1996–97 Serbian citizens took to the streets for three months to protest Milosevic’s revocation of opposition electoral victories in cities throughout Serbia. 16. Del Ponte gives the most credit for Milosevic’s transfer to the ICTY to Djindjic and others in Serbia, as well as Colin Powell, then secretary of state: “Without decisive pressure from Washington, the Tribunal would never have taken Milosevic into its custody.” Madame Prosecutor, 119. 17. War still raged in the Balkans when the UN established the ICTY in 1993, making it inadvisable to locate the tribunal on home turf. The Netherlands offered to house the ICTY in The Hague, as it had the International Court of Justice (“the World Court”) and the International Court of Arbitration. When the permanent InterN o t e s   473

national Criminal Court was established the Dutch, looking to become the world center of international law, again opened their doors. 18. A joint criminal enterprise is similar to a conspiracy under United States law. It refers to a group of two or more people who join together for a criminal purpose. 19. Named co-perpetrators in the alleged joint criminal enterprise concerning Croatia were Borisav Jovic, Branko Kostic, Veljko Kadijevic, Blagoje Adzic, Milan Babic, Milan Martic, Goran Hadzic, Jovica Stanisic, Franko Simatovic (“Frenki”), Tomislav Simovic, Vojislav Seselj, Momir Bulatovic, Aleksandar Vasiljevic, Radovan Stojicic (“Badza”), Zeljko Raznatovic (“Arkan”). Named co-perpetrators in the Bosnia indictment were Radovan Karadzic, Momcilo Krajisnik, Biljana Plavsic, Ratko Mladic, Borisav Jovic, Branko Kostic, Veljko Kadijevic, Blagoje Adzic, Milan Martic, Jovica Stanisic, Franko Simatovic, Radovan Stojicic, Vojislav Seselj, and Zeljko Raznatovic. The prosecution did not indict all co-perpetrators. Those named with Milosevic in the Kosova indictment were Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, and Vlajko Stojilkovic. Later the prosecution added Sreten Lukic, Nebojsa Pavkovic, and Vladimir Lazarevic. 20. The first site of conflict was Slovenia, where the fighting lasted ten days. The prosecution brought no charges related to it. 21. While the trial chamber denied the prosecution’s request to consolidate the indictments, the appeals chamber overruled the trial chamber. 22. Despite his continued obstructionism, intimidation of witnesses, and disrespect of the court, Seselj was ultimately allowed by the appeals chamber to represent himself, after a twenty-eight-day hunger strike that nearly cost him his life. The trial was suspended on 11 February 2009 because of threats to witnesses, for which Seselj was tried and found guilty of contempt of court on 24 July 2009. The trial court denied prosecution motions to appoint counsel on 27 November 2008 and 24 November 2009. Seselj’s trial resumed on 12 January 2010. On 4 February 2010 the court again charged him with contempt for endangering eleven protected witnesses. As of this writing, he continues to represent himself. 23. Of course a leader may be tried in a domestic court rather than an international one. However, domestic courts that survive a dictator’s rule often lack independence. 24. This is not to say that an international tribunal is the only model for accomplishing justice. In Rwanda, for example, traditional Gacaca courts are being used as a supplement to domestic courts, leaving the ICTR to try major political and military leaders. In Bosnia-Herzegovina the ICTY and Office of the High Representative for the UN helped establish a domestic war crimes court in Sarajevo. Opening its doors on 9 March 2005, the court will operate for its first five years with international judges sitting alongside domestic judges, after which it will be entirely domestic. 25. For example, granting the Revolutionary United Front leader Foday Sankoh amnesty for atrocities (including murder, rape, and mutilations) in Sierra Leone in exchange for signing the Lome peace accords in 1999 did nothing to establish the peace and stability that diplomats sought, according to Ken Roth at Human Rights Watch. Within a short time Sankoh attacked government forces and UN peacekeep474  N o t e s

ers, taking hundreds of hostages. The revived conflict, with its attendant loss of life, lasted for more than two years.

Chapter 1: Opening Statements 1. This is not to say that Del Ponte was apolitical. She looked to governments for evidence that only they possessed and relied on their troops (as part of NATO and UN peacekeeping forces) to make arrests. She lobbied states and pan-state bodies (such as the European Union and UN) to maintain pressure on Serbia to arrest indictees by making benefits, such as EU membership, contingent on compliance. She also decided whom to indict, as all prosecutors do. Just how political those decisions were is beyond the scope of this book. 2. The underlying crimes, including murder, rape, and deportation, had been proved for Bosnia and Croatia in other ICTY cases, and therefore the prosecution need not establish them again in the Milosevic case. It was not true for Kosova, since the Milosevic case was the first trial of crimes committed during that conflict. In all cases, however, the prosecution had to connect Milosevic to the crimes. 3. Kosovo Census Data, appendix A, 316, in Mertus, Kosovo. 4. Serbs refer to the eastern half of the province as Kosovo and the western as Metohija, combining them to refer to the entire territory as Kosmet. Albanians oppose the inclusion of Metohija, Greek for “monastic estates,” which they regard as an implicit acceptance of Serbia’s claim on the province. See Judah, Kosovo, 3. 5. No party gained an absolute majority. Despite a strong showing by the nationalist VMRO (Internal Macedonian Revolutionary Organization), the Macedonian Assembly elected the Communist Kiro Gligorov as president. Magas, The Destruction of Yugoslavia, 278. See also Allcock et al., Conflict in the Former Yugoslavia, 162. 6. The Ustasha, extreme Croat nationalists who supported Nazi Germany, though a minority of Croats, waged a vicious campaign of genocide against Serbs, Jews, and Roma in parts of Yugoslavia that they controlled during the Second World War. 7. By now even the Bosnian Serb Republic agrees that at least one thousand more Bosnian Muslim men and boys were massacred at Srebrenica. 8. Nonviolent resistance can be active or passive. Rugova’s error was in pursuing passive resistance—unlike Gandhi and King. The international community compounded this by ignoring the resistance movement when it could have provided support and technical assistance to increase its effectiveness. Clark, Civil Resistance in Kosovo. 9. For that to happen, according to James Gow, a political decision had to have been made in February. The Serbian Project and Its Adversaries, 201–2. 10. It has been credibly suggested that he set out to provoke it, knowing that NATO would have no option but to use force to avoid losing face and strategic credibility. Ibid., 206. Milosevic’s mistake was expecting the NATO air campaign would end after several days or at most a matter of weeks, and the majority of ethnic cleansing took place in the first weeks of the war. In the event, the war dragged on for seventyeight days, forcing Milosevic to capitulate. 11. Relying on the appeals chamber decision in the Tadic case, the trial chamber held N o t e s   475

that a court has the inherent right to rule on its own legitimacy and that the ICTY was legally constituted by the UN Security Council under chapter 7, article 41. Prosecutor v. Milosevic, “Decision on Preliminary Motions,” 8 November 2001. 12. The Battle of Kosovo Polje between Serbs, their allies, and Ottomans took place in 1389 and is considered a seminal event by Serb nationalists. Though historians continue to debate the outcome of the battle, Serbs view it as a historic defeat by which Serbia disappeared as a nation for five hundred years. Whatever the outcome, Serbia ceased to exist by at least the mid-fifteenth century. Mertus, Kosovo, 184–85; Anzulovic, Heavenly Serbia, 39. The Battle of Kosovo Polje is said to have occurred on 28 June, St Vitus’s Day (Vidovdan), though that day was not established as a Serb national holiday until 1913. Vidovdan (literally Vid’s Day) originally referred to the pagan war god Vid. 13. While not relevant in Milosevic’s trial, the issue of whether NATO committed war crimes was a legitimate issue for the ICTY. The Office of the Prosecutor (OTP) established a commission to advise it on whether enough evidence existed for an indictment against NATO. The commission did not decide whether “aggression” against the FRY constituted a war crime, as it lacked jurisdiction and the FRY had already filed a case against NATO and its members with the International Court of Justice (later dismissed by the ICJ). The commission noted that NATO’s reply to questions was general and did not address specific incidents. It gave substantial weight to a report by Human Rights Watch, whose investigators conducted a fairly comprehensive investigation and confirmed ninety incidents involving about five hundred civilian casualties due to NATO bombing during seventy-eight days of war. The commission concluded there was no evidence that crimes under the jurisdiction of the ICTY had been committed, most likely because the element of intent was missing. It recommended against an investigation by the OTP since either the law was unclear or an investigation was unlikely to result in sufficient evidence to support indictments. Del Ponte followed that recommendation. Both she and the commission were criticized for what some saw as a political decision. For arrests and evidence the OTP relied on NATO and certain NATO countries, notably the United States, France, and Britain, making Del Ponte’s position unenviable, to say the least. See Hazan, Justice in a Time of War, 131–39, referencing reports of Amnesty International and the International Committee of the Red Cross. 14. He failed to mention that he held the 840 men in detention; they were not free to return to Bosnia. 15. The problem with this argument is that Serbs were not fighting a war against militant Islamists, though small numbers fought on the side of Bosniaks and Kosovars.

Chapter 2: Milosevic Was Warned 1. An indictment need not name every person killed, but the prosecution must prove that those named were in fact killed by forces under command of the accused. 2. During the trial, “I have my own problems” appeared to be code for having been threatened. 476  N o t e s

3. A court is likely to give less weight to evidence that has not been subject to full cross-examination. 4. Human Rights Watch, Under Orders, 409–11. 5. Article 17 (1). 6. Article 13 (4). 7. Article 20. 8. In the Yugoslav educational system one may pursue a degree in law at the undergraduate level, in the same manner that one might pursue a degree in political science in the United States. 9. The same issue arose when the prosecutor offered its investigator, Barney Kelly, to present a summary of sixty witness statements taken by prosecution investigators about the Racak massacre. The prosecution appealed the trial chamber’s refusal to hear its summarizing witness, but the appeals chamber supported its lower court. “Decision on Admissibility of Prosecution Investigator’s Evidence,” Appeals Chamber, 30 September 2002. 10. Some argue that victims and the public have no rights in a criminal trial. That is becoming less true in the United States. The Rome statute of the ICC (article 68) also expands victims’ rights. 11. Rule 73 bis (E).

Chapter 3: The Lead-up to War 1. The Contact Group, established in April 1994 to secure a peace initiative for Bosnia, consisted of representatives from the United States, Russia, Germany, France, and the UK. 2. The exact origin of the KLA is unclear. According to a report by Human Rights Watch, the first organized violence against Serbian civilians and police in Kosova occurred in early 1996. Later that year a “previously unknown organization called the Kosovo Liberation Army claimed responsibility for the attacks.” Under Orders, 31–32. A former United States diplomat advised me that Ibrahim Rugova told him about the KLA as early as 1995. Communication to author, June 2008. Del Ponte asserts that a small group of Kosova Albanians, primarily in the diaspora in the United States and Western Europe, established the KLA in 1993. Del Ponte, Madame Prosecutor, 274. 3. Jovica Stanisic was indicted by the Tribunal on 1 May 2003 for crimes against humanity for his part in the joint criminal enterprise to ethnically cleanse parts of Bosnia and Croatia of Muslims and Croats from 1991 to 1995. He was arrested on 13 March and transferred to The Hague on 11 June, and on 13 June he pleaded not guilty. His trial began on 28 April 2008, was suspended sine die on 16 May 2008, and recommenced on 9 June 2009. 4. Called the Joint Command. 5. Haxhiu also testified about the draconian media law that the Milosevic regime passed in 1998 to silence any dissent. Along with Koha Ditore, Haxhiu was convicted of “provoking intolerance” and fined 400,000 dinars. It was more than most newspapers and journalists could pay. Those who could not pay were forced to close. On N o t e s   477

his conviction, Haxhiu said that the judge acknowledged that imposing the penalty was wrong, but that his hand had been forced by orders from Belgrade. 6. Perisic and others were against an all-out war with NATO, which they knew Serbia could not win. Milosevic did not care about winning. He wanted a cover to remove Albanians from Kosova. Gow, The Serbian Project and Its Adversaries, 206. 7. Nebojsa Pavkovic was indicted on 2 October 2003 for participation in the joint criminal enterprise to ethnically cleanse Kosova through violence and terror. His trial, with five co-accused including Ojdanic, began on 10 July 2006 and ended on 27 August 2008. He was found guilty of crimes against humanity and violations of the laws and customs of war and sentenced to twenty-two years in prison. Trial Chamber Judgment, 26 February 2009. Perisic, as VJ chief of staff, was indicted for crimes committed by his subordinates in Bosnia (including Ratko Mladic and other officers associated with the Srebrenica genocide). His trial began on 2 October 2008. 8. The Supreme Defense Council consisted of the presidents of the FRY’s two member republics, Serbia (Milan Milutinovic) and Montenegro (Milo Djukanovic), and the president of FRY (Milosevic). According to the FRY law on defense, the SDC was responsible for overall decision making and planning to defend the country. The FRY president, commander in chief of the Yugoslav Army, was responsible for seeing the army implemented SDC plans. In fact the SDC did not meet during the Kosova war, as Djukanovic, who opposed the war, refused to participate. Regardless, Milosevic had de facto control of the SDC by controlling two of the three votes on the SDC, his and Milutinovic’s. 9. General Naumann testified about Milosevic’s statement on 13 June 2002. 10. Having only three courtrooms and six active cases limited the Milosevic trial to approximately five hours a day, aside from his health dictates. 11. See ICTY rule 98. 12. UNSC resolution 827, 25 May 1993. 13. Lawrence Douglas provides a thoughtful analysis of the non-forensic purposes of war crimes trials in his book The Memory of Judgment. 14. Human Rights Watch, Weighing the Evidence, 61. 15. The indictment alleged that Serbian forces killed approximately forty-five civilians. During trial the prosecution conceded that three of the people on its list were KLA members, leaving forty-two civilians killed. 16. The prosecution maintained that forty-seven KLA soldiers were on site, while Milosevic’s witnesses said there were at least eighty. Testimony of Shukri Buja and General Bozidar Delic. 17. Buja’s testimony was contradictory on who fired first. At one point he said that the KLA fired warning shots first. At another he testified that the MUP fired first to locate the KLA trench. 18. Since Buja testified that nine of his men were killed, it appears that one of the wounded died later. 19. According to Milosevic’s witnesses, the MUP invited the KVM to observe the operation, but testimony by KVM monitors did not support this.

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20. A Praga is a diesel-engined military truck of Czech origin built between 1950 and 1980. 21. Quotes from Radosavljevic’s interview with the prosecution indicate that his testimony would not have favored Milosevic’s case. 22. Janicevic acknowledged authorship of the chronology during his testimony. 23. Under ICTY rule 92 bis, he could more expeditiously have submitted duplicative evidence in writing. 24. Nice: “There is no doubt, is there from reading, as you would say, a carefully prepared report on the information available that all the people died in the trenches and all the weapons were found in or around the trenches. That’s what it says.” Janicevic: “That’s what it says.” Nice: “But one way or another, your colleague, for whatever reason, seems to have been placing bodies at roughly the places where the prosecution said those bodies were found.” 25. Buja served five years of his sentence. On release he was rearrested several times before obtaining asylum in Switzerland. He returned to Kosova in 1998 after the Jashari massacre. 26. “Electric Shock at the Urosevac Police Station,” Humanitarian Law Center, 1998. Prosecution witness K-5 testified that he saw Officers Jasovic and Sparavalo beat the elderly Muhammed Bega as he was tied to a chair. Nice confronted Jasovic with a statement from Dr. Xhela Recica, who made a record, including photographs, of those tortured in the Urosevac police station going back to 1991, when he treated eighty-three people for injuries sustained there. Avdi Xhevat Hysenaj contacted the prosecution after seeing Jasovic on television, testifying in another trial. Hysenaj said Jasovic was his torturer. Jasovic denied these accounts. Nice offered to call the witnesses in rebuttal if the court so wished. 27. While the Belgrade government denied the prosecution access to archival material, Milosevic often produced it during his case. Having not seen the statements that Jasovic took before they were produced through Milosevic’s witnesses, the prosecutor had to investigate the documents during the defense case. To properly crossexamine Jasovic, the prosecutor received a delay for an investigation that turned up interviewees who claimed that their statements had been coerced or that they had not made them at all. 28. Later handwriting analysis was unable to determine whether the signature was a forgery. 29. Jasovic, who took the statements, attempted to authenticate them. That did not cure their hearsay nature. The best evidence would have been testimony from those who gave the statements. Milosevic made no showing that he attempted to contact any of the declarants to see if they would adopt the statements, or that they were unavailable. ICTY rules do not prohibit hearsay evidence. 30. Ranta and her team attended autopsies conducted by Serbian authorities, though the Serbian team did not wait for the Finnish team’s arrival to begin. They had conducted sixteen autopsies by the time Ranta arrived. She refused to sign off on those autopsies. Milosevic did not make the original autopsy reports available to the court

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because he had not requested them with sufficient specificity from the government in Belgrade. 31. It remained open for the prosecution to argue that police fired from different positions, and some followed up by shooting at close range anyone who appeared alive after the initial barrage. See the testimony of Ian Hendrie, who was with OSCE at the time. 32. The attack order, issued as the Rambouillet talks were taking place, was found among documents discovered during the trial. 33. When Milosevic was president of Serbia he had the constitution rewritten to increase Serbia’s presidential power at the expense of the FRY president. 34. The agreement did not clearly state that the people’s will alone would decide Kosova’s status. It provided that an international meeting would be convened after three years “to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act.”

Chapter 4: War in Kosova 1. See the discussion of the Joint Command in chapters 3 and 13. 2. Perisic was arrested in the company of a United States diplomat and accused of passing state secrets to the United States. 3. Lilic also held discussions with the Austrian chancellor Franz Vranitzky and the Libyan leader Moammar Ghadafi. Ghadafi, apparently in Belgrade for the meeting, asked to talk with Ibrahim Rugova but was told he was in Pristina, preparing to go to Italy the next day. After meeting with Kohl, Lilic wrote a letter to Milosevic dated 5 May 1999, advocating acceptance of Kohl’s proposal for ending the conflict. He concluded: “The responsibility of each one of us is historic. Perhaps we experience it differently. The fate of the Serbian people, the fate of Serbia and the FRY, is in your hands.” The only response to his letter was a “party tribunal” which called him to account for putting something in writing that might later be used as evidence. Those present were Milan Milutinovic, president of Serbia; Gorica Gajevic, secretary general of the SPS; Miomir Minic, senior SPS official and president of the Chamber of Citizens in the Assembly; Zivadin Jovanovic, federal foreign minister; Mirko Marjanovic, prime minister of Serbia; and Dragan Tomic, president of Serbia’s Assembly. Lilic described his letter as a “wish” to start negotiations with Kohl, not something that could be used against Milosevic. He was desperate to stop the bombing, while other Milosevic advisors thought they could defeat NATO. 4. In his letter to Milosevic, Lilic outlined what he thought would be gained by accepting Kohl’s offer: after the cessation of bombing, a political agreement with the Albanians, a conference in Vienna, withdrawal of FRY army and special MUP units to their pre-NATO level, and FRY’s integration into international and European institutions. 5. Milosevic produced a letter he had sent to Lilic in which he told him to accept Kohl’s plan. Lilic kept the original, on which he noted, “Does not accept a proposal for a possible plan and puts forward an idea, ‘useful ambiguity.’ ” In other words, mis480  N o t e s

lead Kohl. Lilic responded that this would be unacceptable. In his letter Milosevic accepted a UN mission, but he did not respond to the rest of Kohl’s proposal, i.e. the provision that the mission must include a NATO member state. 6. From 1990 to 1992 Kosovar leaders, Rugova among them, undertook a successful campaign to reconcile blood feuds, which required a man to kill a member of another family whose kin had killed or harmed a member of his own family. They reconciled one thousand feuds involving death, five hundred involving wounding, and seven hundred “other disputes.” Clark, Civil Resistance in Kosovo, 63. 7. Milutinovic was indicted with Milosevic, but his indictment and that of three others was severed. The fifth accused, Stojiljkovic, committed suicide. After the FRY Parliament passed a law permitting extradition of FRY citizens to The Hague, Stojiljkovic shot himself on the steps of Parliament. Two more of the accused were joined to a new severed indictment. On 26 February 2009 all but Milutinovic were found guilty. Kosova unilaterally declared its independence on 17 February 2008. 8. Rugova died on 21 January 2006 from lung cancer. 9. ICTY rule 96, “Evidence in Cases of Sexual Assault”: In cases of sexual assault: (i) no corroboration of the victim’s testimony shall be required; (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear; (iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera [in chambers] that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence. 10. General Bozidar Delic admitted this during his testimony on 1 June 2005. 11. The report was titled “Airstrikes of the NATO Alliance on the Penal and Correctional Center of Dubrava at Istok on the 19th, 21st and 24th of May 1999, Which Resulted in Fatalities and Substantial Damage.” Paponjak, who signed the report, could not substantiate bombing on 24 May. 12. K-41 could not get to The Hague without approaching the police for a passport, and the police had been looking to question him. Milosevic said that he had a copy of a warrant for the young man’s arrest. The prosecution established a video link, allowing him to testify from an unknown location in the region. 13. The murders in which K-41 participated were not included in the indictment. Therefore even if he felt that K-41’s evidence was strong, Milosevic did not have to answer it.

Chapter 5: Massacre and Cover-up 1. A Pinzgauer is a high-mobility, all-terrain military utility vehicle used to transport troops. 2. Vlastimir Djordjevic was indicted by the ICTY on 2 October 2003 for crimes against N o t e s   481

humanity and war crimes. After evading authorities for three and a half years he was arrested in Montenegro in June 2007. 3. Karleusa provided important testimony on the concept of “clearing” or “cleansing,” a subject of much dispute in the trial. “The very fact that according to the statement of Mr. [Radomir] Markovic, it was said that a removal of all traces should be carried out that might be [the] subject of interest to The Hague Tribunal or, rather, that all bodies of civilians should either be dug up or found in some other way and transferred to a different locality means, as far as I’m concerned, it seems to me the term ‘asanacija,’ ‘clean-up,’ cannot be used in its regular, right meaning.” The regular meaning, which Milosevic kept insisting on, was “to clear the terrain after a battle.” 4. Quoted from Shah’s Caravan of Dreams (London: Octagon, 1988) in Doder and Branson, Milosevic, 282. 5. Nice asked her reaction to allegations that Markovic had been tricked into signing statements or had been presented with fully completed statements for his signature. Antonic-Simic replied that this did not happen in her presence. Milosevic claimed that the witness meant she was not present when Markovic signed the statement. In response to Judge May’s clarifying questions, she confirmed that she was present when Markovic signed. 6. Testimony of the prosecution expert Robert William Fulton, 28 May 2002. 7. ICTY rule 77. 8. The assessment was made by the Victim and Witnesses’ Unit. 9. “Trial Chamber Finding in the Matter of the Witness K12,” 21 November 2002. 10. On the morning of 2 April 1999 Ismet Haxhiavdija’s son came to him and said, “Father, my life is ended.” During the night Serbian forces had killed his wife and children. Later Haxhiavdija went to the compound and found the burned body of a neighbor and corpses of nine women and children, including his daughter-in-law and grandchildren, the youngest of whom was about two. 11. The FRY declared an imminent threat of war on 23 March 1999. The MUP was subordinated to the VJ as of that date, placing it under Milosevic’s legal authority. Though Milosevic refused to declare a state of emergency before that date, evidence showed that he had de facto control of the MUP since losing his legal authority when he moved from being president of Serbia to president of the FRY in July 1997. 12. See testimony of General Sir Peter De La Billiere and Phillip Coo. 13. “Decision on Motion for Judgment of Acquittal,” Trial Chamber, 16 June 2004. 14. An accused need not present evidence in his defense. It is entirely up to the prosecution to establish guilt beyond a reasonable doubt. See “Acquittal at Close of Prosecution Case,” 6.

Chapter 6: Milosevic’s Rise to Power 1. LeBor, Milosevic, 122. 2. Later in the trial JNA intelligence officers who participated in the propaganda and provocations confirmed Mesic’s testimony. As for Milosevic’s control, in the early stages, in 1989 and 1990, he did not have control over the JNA, but the JNA and the

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federal secretary of people’s defense, Veljko Kadijevic, believed that they held a purpose in common with Milosevic—the preservation of Yugoslavia. While Milosevic initially supported Yugoslavia’s preservation (with him as its president), he soon realized that it was not possible. He did not change his rhetoric even as he changed his intent from ruler of all to ruler of the Serbs in an enlarged Serbian state. The army wanted to preserve Yugoslavia because it only continued to exist if Yugoslavia did. Moreover, many officers, as long-time communists, were loyal to the federal socialist state. While Milosevic lacked de facto control over the JNA until sometime in 1991, he strongly influenced it through his alliance with Kadijevic and manipulated it through his pretense of wanting to preserve Yugoslavia. General Aleksandar Vasiljevic, head of army intelligence, answered directly to Kadijevic rather than the JNA chief of staff, as he later testified. Seen in this light, the clandestine provocations of counterintelligence operatives are understandable, as are the JNA’s interventions between Serbs and Croats, ostensibly to calm the situation but favoring the Serbs. By the summer of 1991, after replacement of untrustworthy generals, the JNA was essentially a Serb army. 3. While its rank and file had been multiethnic, the JNA’s officer corps was dominated by Serbs. 4. See also testimony of Milan Milanovic, former deputy defense minister of Eastern Slavonia, who testified that by August, and possibly as early as May 1991, the JNA was the army of the Serb nation. B-1493, a high-ranking former JNA officer, told the court that the JNA was “Serbianized” by the time it left Slovenia in July 1991. Its objective was to protect Serbs in Croatia (and later Bosnia). Under the guise of separating supposedly warring parties, the JNA aided Serb efforts to gain control of significant regions, he said. Borisav Jovic, a former Milosevic ally and Serbian representative on the Yugoslav presidency, testified as of his meeting with Veljko Kadijevic on 5 July 1991 that Milosevic had considerable control over the JNA through its leadership. See also testimony of Zoran Lilic and Milan Babic. 5. The Coordinating Office was established to facilitate the staffing, supply, financing, and organization of the Serb Territorial Defense in Croatia. 6. Milosevic claimed that the rallies were spontaneous, offering the testimony of the Kosovo Serb activist Mitar Balevic to prove it. See chapter 15. 7. Milosevic made no attempt to take away Kosova’s and Vojvodina’s vote on the federal presidency despite eliminating their autonomous status. He needed their two votes, together with Serbia’s and Montenegro’s, to control the eight-member presidency. 8. Also during March 1991, forces under Milan Martic took over Plitvice National Park. On 31 March Croatian police attempted to retake it, resulting in the deaths of one Croat and one Serb, the first casualties of the war. In a pattern that would be repeated throughout Croatia, the JNA intervened, ostensibly to separate the warring sides but in reality to support Serb efforts to take and control territory. 9. After one meeting representatives of Macedonia, Slovenia, and Bosnia also quit attending the illegitimate presidency meetings.

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10. In his defense case Milosevic and his witnesses insisted that the three-month hiatus only applied to Slovenia, and that Croatia remained a part of the SFRY until it ceased to exist. 11. “Turkish Croatia” consisted of territory Croatia lost to the Ottoman Empire in the sixteenth century, when it became part of Bosnia. Croatia reclaimed it (and more of Bosnia) from 1939 to 1941 but lost it again under occupation by the Axis powers in the Second World War. The territory returned to the state of Bosnia when the Partisans formed the Socialist Federal Republic of Yugoslavia after the war. A number of Croats considered it Croatian territory that should rightfully have been theirs. 12. If Milosevic indicated to Mesic or Tudjman that he was not interested in parts of Croatia inhabited in the majority by Serbs, he was playing games with them. All indications are that he was serious about including Croatian Serbs within an enlarged Serbia—until it was no longer possible to do so and secure the lifting of sanctions against Serbia. 13. The UN, Europe, and the United States pressed Croatia, like Bosnia and Serbia, to hold local war crimes trials of suspected lower-level perpetrators, since the ICTY could prosecute but a few of the leaders and unusually egregious violators. Human rights groups criticized initial efforts for nationalist bias. 14. It was not a purpose of the trial to decide who was responsible for the breakup of Yugoslavia or even for starting the wars. Its sole purpose was to determine if one individual was responsible for crimes, as charged, committed during the conflicts. Neither is it the purpose of this book to address the issue. 15. Milosevic was not alone in obstructing Markovic’s reform program. The other republic leaders did so as well. The prosecution did not have Markovic expand on responsibility for the failure of reforms because it was not directly relevant to the indictment against Milosevic. 16. At Milosevic’s request he also resigned as a member of the federal parliament. Borisav Jovic, “Rule 89(F) Statement” (16 November 2003), para. 6. 17. James Gow argues that Milosevic was not a dictator but possibly something more dangerous: “The term ‘dictator’ was often applied to the Serbian leader, although it did not fit well, given that Milosevic tended to lead through manipulation, intimidation, confusion and ambiguity, rather than the direct application of power and threat that the term might connote. While he might have no compunction about sanctioning any act of brutality, including the murder of former cronies, his manner of rule generally had greater subtlety—and arguably, therefore, greater strength.” The Serbian Project and Its Adversaries, 11 n. 7. 18. Jovic statement, para. 124. 19. Ibid., para. 138. 20. Ibid., para. 153. He backtracked a bit in court. 21. Ibid., paras. 98–102. 22. Ibid., para. 101. 23. The JNA sent Serb officers, regardless of origin, to command Bosnian Serb army troops. 24. Jovic Statement, paras. 104–6. 484  N o t e s

25. Large concentrations of Serbs lived in Serbia, Montenegro, Croatia, and Bosnia. 26. They were fleeing the massacre at Srebrenica and the UN pressed Milosevic to accept them. According to some refugees they were put in concentration camps and mistreated. Tens of thousands of Bosnians fled to Serbia throughout the war. 27. See testimony of General Radislav Djordjevic, 10–11 March 2003, and Dobrila GajicGlisic, secretary to the Serbian defense minister, 21–22 October 2003. 28. Jovic statement, para. 153. 29. From 2003 to 2006 the official name of the confederation that had been the Federal Republic of Yugoslavia (FRY) was the State Union of Serbia and Montenegro. Montenegro became an independent state in 2006. The entity is here referred to as “Serbia” for simplicity and because the two republics were loosely associated at the time. In all but name, Serbia controlled the archives and was responsible for granting access to the ICTY. 30. “Decision on Application for a Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case with Confidential Annex,” 13 December 2005. 31. Lilic’s substantive evidence on Kosova is discussed in chapter 4. 32. Rule 54 bis, “Orders Directed to States for the Production of Documents.” 33. An interlocutory appeal is one filed while the trial is ongoing, as distinct from an appeal of a judgment after the trial concludes. It is only allowed in certain circumstances and with permission of the court. Rule 72. 34. Prosecution cross-examination of Milos Djosan, 26 October 2005. 35. After opening statements the prosecution presents its “case in chief,” during which it calls witnesses and submits exhibits. The defense case follows. The prosecution has a chance to rebut the defense case and the accused has another chance to answer the prosecution (“rejoinder”). 36. After the Law on Ranks passed in 1995, Milosevic gave the MUP military rank. “In a single day, Milosevic awarded the rank of general to approximately fifteen men.” The head of public security in the Ministry of Interior was promoted from lieutenant to colonel general, “thus becoming equal in rank to the Chief of the VJ General Staff.” Babovic concluded that the law on ranks in the MUP “represented the pinnacle of militarization of the police in Serbia.” “Prosecution Submission of Expert Statement of Dr. Budimir Babovic Pursuant to Rule 94bis,” 25 April 2003, para. 78. 37. Milosevic’s legal power over the police derived from the Serbian constitution when he was president of Serbia, beginning in 1989. In that year a law was passed centralizing control over the police under the Serbian president, replacing a law from 1985 providing for local and regional control. When Milosevic moved from president of Serbia to president of the FRY in 1997 he maintained actual control of the Serbian MUP regardless of legal restrictions on his authority. Ibid., para. 79. 38. Ibid., para. 161. 39. Ibid., para. 164. 40. Gajic-Glisic, under Simovic’s direction, wrote a book, The Serbian Army (1992), criticizing Milosevic’s mobilization of people from Serbia to fight in Croatia and Slovenia. 41. Babic’s report also addressed the Serbian MUP’s relationship to the federal MUP. N o t e s   485

From 1992 to 2000 the federal MUP was a de facto branch of the Serbian MUP. The Serbian police physically destroyed the federal police, occupying the federal MUP building by force on 19 October 1992. 42. The constitutional court ruled the Law on Ranks unconstitutional, he explained, because it sought to regulate matters that only the constitution can regulate, substantially his own position. 43. The Trial Chamber declined to hear large portions of Dr. Kristan’s testimony, stating that he was not sufficiently disinterested. Dr. Ivan Kristan served on the Yugoslav Constitutional Court when decisions affecting Kosova’s autonomous status were before it. Though the federal court did not render a decision on the issue, Dr. Kristan expressed his opinion that Serbia violated the constitution when it revoked Kosova’s autonomous status. That he had given his opinion on matters now at issue before the tribunal undermined his objectivity, the ICTY Trial Chamber held. It appeared that the judges would have considered Dr. Kristan objective if he had reached the same conclusion in an academic article. While it is inappropriate for an expert to give an opinion on ultimate issues (such as whether Milosevic intended to expel Kosova’s Albanian population), that he had considered an issue before the tribunal should not alone have disqaulified him. In complex issues of constitutional law, it is helpful if the expert has spent time analyzing the issues. After allowing Milosevic’s constitutional law witness to testify, the court reconsidered and agreed to hear Kristan as a fact witness, but Milosevic’s death intervened to preclude his testimony. 44. Emir Suljagic, “Document Reveals Milosevic Accountability for Worst Atrocity of the Balkan Wars,” IWPR, Tribunal Update 317, 9–13 June 2003 (www.iwpr.net). 45. “And in the first sentence, it said—and this is very important and I really want to highlight it here—that the Assembly of Montenegro states that it recognises the will of the Croatian people, for them to have an independent state. I have to emphasise here that in spite of the war and in spite of all the troubles that prevailed then, Montenegro was the first one to recognise Croatia’s independence along with Slovenia officially. So although this is contradictory to everything that was going on but that is a fact. This document does exist and you have it.” 46. The Carrington Plan provided autonomy for Bosnian and Croatian Serbs within Bosnia and Croatia, to include their own education systems, parliaments, police, and judiciary. 47. Djukanovic: “I should like to take this opportunity in my own name and also on behalf of the citizens of Montenegro, especially those citizens who share my moral and political convictions, to say that I deeply regret, and my sympathies are with all the citizens of the Republic of Croatia, especially the citizens of Konavle, Dubrovnik, for all the pain and all the suffering and all the material losses and damages that were inflicted on them by any representative of the Montenegrin people within the Yugoslav People’s Army.” 48. The right of the accused to confront witnesses insured that he and his associates would know the identity of witnesses who testified with pseudonyms, with face and voice distortion, or in closed session.

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Chapter 7: The Exercise of (De Facto) Power 1. “Prosecution Submission of Expert Statement of Dr. Budimir Babovic Pursuant to Rule 94bis,” 25 April 2003, 11. 2. Milosevic asserted that Lazarevic had very eloquently “told a story” about his recruitment of personnel from the UN and the European Community Monitoring Mission by getting them drunk and supplying them with women, but it was not true. Lazarevic said he would name names if the court went into closed session. It did. On returning to public session, Milosevic did not repeat the challenge. 3. KOS is a popular acronym for military intelligence, also designated KOG. 4. On 14 July 2006 Serbia’s Supreme Court upheld a verdict of 29,000 euros in favor of seven men forcibly conscripted into the VRS in 1995. The Humanitarian Law Center, which brought the suit, represented another seven hundred refugees, out of an estimated ten thousand, from Bosnia and Croatia who were forcibly mobilized. 5. Simatovic was also named in the Milosevic indictment as a member of the joint criminal enterprise and later indicted with his boss, Jovica Stanisic, head of Serbian State Security. 6. After testifying, Babic was indicted on four counts of war crimes and one count of crimes against humanity (persecutions). He pleaded guilty to the persecutions charge as a co-perpetrator and was sentenced to thirteen years in prison. The sentence was upheld on appeal. Babic committed suicide in 2006 during his testimony at the trial of Milan Martic, one week before Milosevic died. 7. In the following excerpt Milosevic and Karadzic discuss their plan for a new, Serbdominated Yugoslavia consisting of Serbia, Montenegro, and half of Bosnia. The time is early July 1991, after the European Community’s imposition of a threemonth hiatus before recognizing Slovenia and Croatia as independent states: MILOSEVIC: Three months are out of the question. I think that some things should be radically changed now, radically. KARADZIC: Yes. .... MILOSEVIC: They have nothing more to do. Now we are the ones making the move, it’s time for our move now. . . . The thing is clear there, we can’t discuss it in detail now. They want to separate. KARADZIC: That’s clear. MILOSEVIC: That’s clear and they should be allowed to separate. KARADZIC: Yes. MILOSEVIC: Now there is only one question left, to have disintegration in line with our inclinations. .... MILOSEVIC: . . . concerning Slovenia, I would let them go immediately. KARADZIC: Yes. MILOSEVIC: Let them go immediately, and the others as well after they have settled the issue of borders with us. . . . KARADZIC: Yes. N o t e s   487

.... MILOSEVIC: We should take radical steps, and speed up things. It’s a completely clear thing. KARADZIC: Yes. 8. Though fighting in Yugoslavia during the Second World War had elements of a civil war between Serbs and Croats (as well as Serbs and Albanians), only a minority of Croats joined the Ustashas in their genocidal campaign against Serbs, Jews, and Gypsies. Likewise, Croats as well as Serbs joined the antifascist Partisans. 9. On 2 March 1991 a group of Serb policemen attacked and took over the Pakrac police station. Within hours police from Zagreb took back the station, thwarting the coup and causing rebel forces to flee. 10. Serb majority area in Croatia. 11. On 26 December 1991, only days after the Serbian Autonomous Province (SAO) Krajina established the Republic of Serb Krajina (RSK), the SAO of Slavonia, Baranja, and Western Srem (Eastern Slavonia) and the SAO Western Slavonia made unilateral declarations to join the RSK. 12. While the Croatian army retook most of the territory lost to Serb aggression early in the war, it had refrained from attacking Eastern Slavonia because it lay on the border with Serbia and was likely to elicit a VJ response. 13. Milosevic’s one-time collaborator and head of customs, Mihail Kertes, provided extensive information on Milosevic’s misappropriation of funds after his own arrest on the charge, among others, in November 2000. Milosevic’s successor as Serbian president, Vojislav Kostunica, took no steps to have him arrested, leaving Milosevic free to participate in party politics. When Zoran Djindjic was elected prime minister, however, he put into play forces that led to Milosevic’s arrest, timed to prevent the United States from withholding economic aid, as threatened. Two months later Djindjic orchestrated Milosevic’s transfer to The Hague to stand trial for war crimes, genocide, and crimes against humanity, after another push from the United States. 14. Two of the world’s most prevalent legal systems are the common law or adversarial system and the civil law or inquisitorial system. The common law system, which exists in the United States and Great Britain, relies on a duel of adversaries (prosecutor and defense attorney) to expose the truth. The civil law system, prevailing in continental Europe, places an investigative judge in the position of discovering the truth. The ICTY was a hybrid of the two systems, though leaning more toward the adversarial model. 15. Seselj testified for the defense that they were not students but rabble, who threw stones and bottles of water at him, threatening his life. He felt justified in pulling a gun, he said, claiming that he had pointed it in the air. 16. Vasiljkovic seems to imply the SDB planned to kill him outside Serbia to avoid a public outcry. He claimed to be enormously popular with the Serbian public because of his reported exploits in the Krajina. 17. A year before prosecutors received a copy of the videotape, they obtained a transcript replete with passages marked inaudible and unrecognizable names. Florence Hartmann, former spokeswoman for Carla Del Ponte, believes that the United 488  N o t e s

States, source of the tape, provided the poor transcript to obstruct the prosecution. Nice told Marc Perelman, “There might have been a bad translation at some point, but there is absolutely no reason to believe the providing source didn’t want to help us out.” Marc Perelman, “Western Promises,” Nation, 7 January 2008. 18. Approximately $100,000 to $120,000 U.S. at the time. 19. Stambolic went for his early-morning jog along the river and never returned. There was no corpse or evidence of foul play. At the time Stambolic was considering reentering politics to challenge Milosevic for the Yugoslav presidency. After Djindjic’s assassination members of the Red Berets led police to Stambolic’s body. 20. Del Ponte called that “ludicrous,” stating that he was killed by people in danger of losing their privileged positions, which allowed them to engage in criminal activities, and referring to the Red Berets and their commander, Milorad Ulemek (“Legija”), who had “moved into racketeering, prostitution, drug-trafficking, gunrunning, [and] murder-for-hire.” Ironically it was Legija to whom Djindjic turned for help in bringing down Milosevic. Legija insured that the police did not come to Milosevic’s rescue. 21. Belgrade ultimately released the documents, but on the condition that significant parts, which could harm them in Bosnia’s ICJ case, remained confidential.

Chapter 8: War and Attempts at Peace 1. While the JNA withdrew forces in early December 1991, it maintained a naval blockade until August 1992. Nojko Marinovic, ICTY Witness Statement, 7 August 2000. 2. There is a discrepancy because the larger number (670) included soldiers in the entire southern Dubrovnik region, the smaller number (100) only those around the town of Dubrovnik. 3. The Prevlaka Peninsula is at the southernmost tip of Croatia and the mouth of the Bay of Kotor in Montenegro. In the early days of the war the JNA, using troops from Montenegro, seized control of the strategic peninsula, intending it as the new headquarters of the Yugoslav Navy. Croatia and Montenegro continued to contest its ownership well after the war ended. 4. Stjepan Mesic testified that he accompanied a convoy of boats seeking to bring humanitarian aid to the besieged city. Though he was president of Yugoslavia, federal forces refused to let the convoy through, insisting that it needed to go to Montenegro to be searched for weapons. After extensive international publicity the military allowed the boats to be searched at sea, then to put ashore. It was a one-time event. 5. According to the 1991 census 43.7 percent were Croat and 37.4 percent Serb. 6. Many thousands more Serbian men resisted conscription, some by sleeping away from home, moving from one relative’s or friend’s couch to another. It has been estimated that 200,000 mostly young people left Serbia to avoid participation in its wars. Ofelija Backović, Miloš Vasić, and Aleksandar Vasović, “Who Wants to Be a Soldier? The Call-up Crisis: An Analytical Overview of Media Reports,” The War in Croatia and Bosnia-Herzegovina, 1991–1995, ed. Branka Magaš, Ivo Žanić, and Noel Malcolm (London: Frank Cass, 2001), 340. N o t e s   489

7. Letter introduced during testimony of Branko Kostic in defense case, 14 February 2006. 8. A potent local brandy distilled from plums, often homemade. 9. Radic stood trial with Veselin Sljivancanin and Mile Mrksic and was found not guilty. His two co-accused were convicted and sentenced to five and twenty years. They have appealed their convictions. 10. In February 2000 Dulovic was called before a military court in Belgrade to testify about the incident at Vukovar Hospital. The case was against “unknown perpetrators,” which indicated to the witness that “the State and the JNA stood behind them and didn’t want to identify or accuse them.” Dulovic told the ICTY that only one man was brought to account for the crimes, even though the authorities had names of others. 11. Milosevic tried unsuccessfully to characterize the order of events to make it seem that he did not know of Kadijevic’s agreement until Vance and Okun told him. 12. According to Okun’s diaries this was only one of several times that he and Vance notified Milosevic and other political and military leaders of crimes committed by those under their control. 13. Adam LeBor put a slightly different spin on Tudjman’s reason for the Sarinic mission—to determine whether Milosevic would intervene to save the Krajina Serbs if they were attacked. In the end Sarinic’s accurate assessment was that Milosevic would not act to save the Krajina Serbs. LeBor, Milosevic, 222. 14. It was not the first time Croatia violated the ceasefire. In January 1993 Croatian forces successfully took military action to recover the Maslenica Bridge, a hydroelectric project, and the Zadar airport. 15. The combined forces of Croatia and Bosnia were moving toward Banja Luka. Had they not been stopped, they “would certainly have retaken all Serb-held territory in eastern and central Bosnia, and in the opinion of some informed observers at the time, might well have swept all the way to the Drina River and expelled the Serbs completely from Bosnia.” Sell, Slobodan Milosevic, 245. It would have been a fairer resolution and one with more chance of success. As it is, the Bosnian Serbs kept territory they had secured through violence and genocide. The two republics remain divided within an unhappy federation, and the intransigence of the RS over cooperation with the ICTY has held Bosnia back from membership in the EU. 16. Galbraith testified that Tudjman had other reasons for Operation Storm: (1) The Bosnian and Croatian Serbs had launched a combined attack against Bihac, a pocket of Bosnian territory surrounded by territory taken by the Serbs. The Croats were concerned that if Bihac fell, Serb forces would no longer have to defend Bihac from the Bosnian Army Fifth Corps, freeing them up for the larger war effort. It would also unite the Bosnian and Krajina Serbs with Serbia, creating a unified Serb state. (2) The fall of Bihac would send thousands more refugees into Croatia, already overwhelmed with refugees from Serb-dominated territory. 17. According to a UN report, 60 to 80 percent of Serb property in UN Sector South was fully or partially destroyed during the operation. Sources vary on the number killed,

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from several hundred to sixteen hundred. Almost the entire Serb population of the area fled or was forced out. The prosecutor indicted three Croatian generals (Ante Gotovina, Ivan Cermak, and Mladen Markac) for crimes committed during Operation Storm. Their trial began on 7 May 2007. The prosecution’s pretrial brief argued that apart from the three generals, the main actors in the alleged joint criminal enterprise were President Tudjman, Minister of Defense Gojko Susak, and Generals Janko Bobetko and Zvonimir Cervenko. All four died before they could be tried. 18. Milosevic’s recurrent absences had another negative effect on the prosecution’s case: they played havoc with its witness schedule. Often a witness would have traveled to The Hague and been waiting to testify when the court adjourned the trial to accommodate the accused. The prosecution could continue to pay the witness’s hotel bill, not knowing how long Milosevic’s incapacity would last, or it could send the witness home and bear the expense of two extra flights, assuming that the witness was able to reschedule a return within the time remaining to the prosecution. 19. ICTY rules permitted a trial chamber to accept facts without requiring proof, where they had been established with finality in another ICTY case (“adjudicated facts”). “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts,” Trial Chamber, 10 April 2003. With considerable discretion to admit or refuse adjudicated facts, the Milosevic Court here too took a cautious approach. Out of 482 paragraphs from other cases requested by the prosecution, the court admitted 132, leaving the prosecution to prove the remaining 350. The Court also refused 600 paragraphs from an ongoing case because the facts had not been adjudicated to finality. When the prosecution appealed, the higher court held that the trial chamber had discretion to admit or refuse facts adjudicated in another case, but admission created only a presumption of truth that the accused could rebut. “Decision on the Prosecution’s Interlocutory Appeal against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts,” Appeals Chamber, 28 October 2003. The court refused the majority of facts for which the prosecution sought admission, primarily because the right of rebuttal of the accused would create too great a burden on him and the result could be lengthening the trial if, as was likely, Milosevic set out to rebut each fact so admitted. “Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts,” Trial Chamber, 16 December 2003. Normally the prosecutor and defense counsel will agree on facts not in dispute before trial. Milosevic refused to do so, another reason in support of appointing counsel. 20. This is changing in the United States, where many states now provide explicit protection for “victims’ rights,” including the right to notice at certain points in the case (beginning of trial, sentencing) and the right to make a statement at sentencing. 21. Among the new rights accorded victims in the ICC Statute (known as the Rome Statute) are the right to participate actively in the trial through a legal representative (individually or as part of a group) and the right to reparations. 22. Faretta v. California, 422 U.S. 806 (1975).

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23. Prosecutor v. Barayagwiza, ICTR-97-19. 24. While the court has subpoena power, it must rely on states for enforcement. During the witness boycott in 2004 the court reminded Kay (appointed to represent Milosevic) that he could seek the court’s help to secure witnesses’ attendance, but he did not do so.

Chapter 9: War Comes to Bosnia 1. The area in northwestern Bosnia, called by some Turkish Croatia, was predominantly Muslim. 2. In addition to Kljuic the witnesses were Stjepan Mesic, Lord Paddy Ashdown, Tudjman’s first minister of defense Petar Kriste, and Ante Markovic. 3. For an assessment of the Mujahedin role and actions in Central Bosnia see the trial chamber judgment in the case of Rasim Delic, in which Delic, commander of the main staff of the Bosnian army, was tried for failure to carry out his command responsibility to prevent or punish the El Mujahed Detachment (EMD) for killings and atrocities committed against Croats and Serbs between 1993 and 1995. The EMD consisted of foreign and domestic jihadists and operated as a semiautonomous unit of the Bosnian army. The court acquitted Delic of most charges, while convicting him of failure to take necessary and reasonable measures to prevent the EMD from cruel treatment of prisoners in July and August 1995. The court sentenced him to three years in prison. 4. When a court takes judicial notice of something, it considers its truth established without need for additional proof. 5. The report was based on four trips that Galbraith made to the region. While it concluded that Serbia, Montenegro, and the Federal Republic of Yugoslavia (FRY) did not directly control actions of the Bosnian Serbs, whom it held responsible for ethnic cleansing, Galbraith and his co-author, Michelle Maynard, added they “must share responsibility for what is now underway.” They noted the Bosnian Serbs were receiving financial support directly from Serbia, Serb paramilitaries were fighting in Bosnia, and the FRY evaded sanctions by laundering goods through the RS. 6. The 30th Personnel Center was established by order of Momcilo Perisic, VJ chief of staff, on 15 November 1993 to handle administrative matters for soldiers serving in the VRS. Reynaud Theunens, “Military Analysis Team Expert Report Case IT-0254-t,” December 2003, 36–37. According to Florence Hartmann, the prosecution discovered the existence of the 30th Personnel Center in 2003 when Belgrade finally permitted an ICTY staff member to view its archives. Paix et châtiment. 7. In search of a solution in Bosnia, the United States, Russia, Great Britain, France, and Germany formed the Contact Group in April 1994. They eventually devised a plan giving 51 percent of Bosnia to the Federation of Muslims and Croats and 49 percent to the Serbs. The plan also provided for a ceasefire and for a loose union between the federation and the RS. Further, it allowed the Bosnians to retain their isolated enclaves along the River Drina and to control the strategic town of Brcko, effectively splitting the RS in two. When the RS rejected the plan Milosevic broke

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off relations and closed Serbia’s border with RS territories to all but humanitarian goods. Sell, Slobodan Milosevic, 215–20. 8. Williams also pointed out that in November 1994 the RS attacked the Bihac pocket, an operation requiring considerable ammunition and fuel, which could only have come from Serbia. 9. The JNA was the army of the Socialist Federal Republic of Yugoslavia until the SFRY broke apart. The JNA evolved into the VJ, or army of the Federal Republic of Yugoslavia (consisting of Serbia and Montenegro). The Bosnian Serbs created their own army, the VRS, after illegally declaring their separation from the new Bosnian state, which was also putting together its army, but with far fewer resources and no access to secure more because of the UN arms embargo. 10. In that operation Theunens pointed to an order issued by the command of the VRS Sarajevo Romanija Korps, directing participating units “to conduct an operation aimed at ‘securing favourable conditions for cutting Sarajevo in two.’ ” Participating units included “120 troops and a helicopter squad from the VJ.” 11. The ICTY convicted Mile Mrksic for his failure to prevent local forces from committing crimes after the fall of Vukovar (the Ovcara massacre) by withdrawing his troops, and sentenced him to twenty years. The appeals chamber affirmed the sentence on 5 May 2009. A Belgrade court convicted “Legija” (Milorad Ulemek) for participation in the attempted murder of Vuk Draskovic and the murders of his four associates, Ivan Stambolic, and Zoran Djindjic. 12. Theunens’s report also addressed the JNA’s role in supporting the Serb insurgency in Croatia, including regular meetings with reports sent to Milosevic. 13. Croatia declared independence on 25 June 1991, activated it on 7 October 1991, and was recognized by Germany on 23 December 1991 and by the European Union on 15 January 1992. Bosnia held a referendum on independence from 29 February to 31 March 1992. With Serbs boycotting, 93 percent voted in favor. On 6 April 1992 the EC recognized Bosnian independence, followed by the United States on 7 April and the United Nations on 22 May. 14. Milosevic’s statement is reproduced in chapter 7. 15. Titled “The Assembly of Republika Srpska, 1992–95: Highlights and Excerpts,” 29 July 2003, the report is largely composed of selected quotations from the transcripts about issues relevant to the prosecution’s case against Milosevic. 16. It is unclear why Mladic’s figures exceed 100 percent. 17. Donia Report, 50th RS Assembly Session, 15–16 April 1995, paras. 0084-5791 to 0084-5839. 18. Ibid., 53rd RS Assembly Session, 28 August 1995, para. 0215-4393. The FRY’s military assistance violated the UN arms embargo. 19. Ibid., 50th RS Assembly Session, 15–16 April 1995, paras. 0096-9864 to 0096-9880. 20. Ibid., 32nd RS Assembly Session, 19–20 May 1993, paras. 0215-0273 to 0215-0276. 21. Ibid., 36th RS Assembly Session, 30–31 December 1993, para. 0215-1205. 22. Ibid., 54th RS Assembly Session, 15–16 October 1995, para. 0215-4509. 23. Ibid.

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24. At the request of the EC, Bosnia held a referendum on independence. See note 13, above. 25. The ICTY indicted and tried Oric, alleging that he was directly responsible for wanton destruction of cities, towns, and villages and had responsibility as a commander for failing to prevent or punish murder and cruel treatment of detained persons committed by his troops. The trial chamber acquitted him of personal responsibility but convicted him of failure as a commander. The ICTY appeals chamber reversed the conviction and acquitted him of all charges. 26. On several occasions Milosevic attempted to discredit survivor witnesses who testified that they had been hit with baseball bats by noting that baseball is not a Balkan sport. 27. “Prosecution Submission of Expert Statement of Dr. Budimir Babovic Pursuant to Rule 94bis,” 25 April 2003, paras. 79–84. 28. Funds also came from Fikret Abdic, who led a maverick Bosnian Muslim force in support of the Serbs and against Bosnian government forces in the Bihac area. He paid Arkan’s Tigers fifteen hundred German Marks a month each to fight for him. 29. The former Skorpion was designated B-104 at trial. 30. The Panthers played a role in the takeover of Bijeljina and in the Bihac pocket on the orders of Frenki Simatovic. “Mauser” was assassinated in a drive-by shooting on 7 June 2000. 31. Later the prosecution would present an expert report by Andraś Riedlmayer on damage to religious and cultural monuments throughout Bosnia. 32. While aggressive cross-examination is permitted in common law jurisdictions, it is not unrestricted. For example, the standards of the American Bar Association, which are a model for state standards throughout the United States, provide: “The interrogation of witnesses should be conducted fairly, objectively and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.” Others would go further, prohibiting intimidation and humiliation entirely. Supporters of aggressive cross-examination maintain that it can expose a lying witness. While it may do so on occasion, it can as easily backfire if it causes a jury or judge to become sympathetic to the witness—and hostile to counsel. Others argue that aggressive cross-examination is not necessary to expose lying and is a factor in public disapproval of the legal profession. Nor does it necessarily serve the cause of justice, as victim-witnesses may be dissuaded from coming forward and testifying in a court if they fear that they may be ill treated. 33. ICTY Rule 68 provides: “The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.” The court has authority to impose sanctions against the prosecution for violation of the rule. 34. In a state like Serbia under Milosevic that had no regard for rule of law, except as a smokescreen, authentication by state authorities provided no indicia of reliability.

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Chapter 10: Concentration Camps and Safe Areas 1. Roy Gutman, who broke the stories, won the Pulitzer Prize for his reporting. 2. Zulic was not alone in feeling that he owed a duty to those who died to tell the court and the world what happened to them. This sense of duty is often cited by survivors as a reason why they are willing to retell their horrible experiences despite the trauma that doing so causes. 3. Reconciliation is mentioned neither in the ICTY statute nor in UN Security Council Resolution 808 of 22 February 1993, enabling adoption of the statute. Resolution 808 cites the reasons for establishing the tribunal as providing a means of contributing to peace and security in the region, putting an end to grave breaches of the Geneva Conventions and violations of international humanitarian law, and taking “effective measures to bring to justice the persons who are responsible for them.” While it is unlikely that reconciliation can be achieved without peace, security, and justice, the tribunal cannot secure the first two. It can only hope, as the Security Council did, that justice will be a component of peace and security, and that the necessarily flawed justice the tribunal provides, combined with domestic trials, will be enough to aid in the process. 4. On 27 May 1992 two mortar rounds were fired into a line of 150 people waiting to buy bread on Vasa Miskin Street in Sarajevo. Twenty-two people were killed and dozens injured. In the first weeks of 1994 sixty-eight people were killed when a mortar was fired into Markale Marketplace during its busiest hours. 5. According to David Rieff, UNHCR officials in 1993 regularly accused Nambiar of being pro-Serb. Slaughterhouse, 244. 6. Michael N. Barnett, a political officer at the United States mission to the UN in 1993, cogently argues that the organizational culture and bureaucratic interests of the UN also shaped the response of UN officials. “I am increasingly struck by how the concerns for the organization overshadowed, drove, and framed the debate, how easily member states and UN officials were able to conclude that the needs of the organization overrode the needs of the victims of genocide.” “The Politics of Indifference at the United Nations and Genocide in Rwanda and Bosnia,” This Time We Knew, ed. Cushman and Mestrovic, 128, 130. 7. The safe area concept met with initial resistance in the UN. When the Srebrenica municipality, its population swelled with refugees, was on the verge of falling to the Bosnian Serbs in 1993, with potentially dire consequences, the UN adopted the safe areas policy as a compromise and, some said, a fig leaf for its unwillingness to authorize military intervention. UN Security Council Resolution 836 limited UNPROFOR’s response to self-defense, thus excluding defense of the civilian population. For an in-depth discussion of this process see Honig and Both, Srebrenica, 99–117. 8. According to some estimates, almost half Bosnia’s population consisted of refugees or IDPs by June 1992. Donia and Fine, Bosnia and Hercegovina, 245. 9. UNSC resolutions 819 and 836. 10. Though resolution 836 referenced chapter VII of the UN Charter (authorizing use of force), the resolution was inherently contradictory and subject to various interpreN o t e s   495

tations. Language on “deterrence” and “self-defense” was inserted precisely to limit the UN’s obligations. See Honig and Both, Srebrenica, chapter 5. 11. UN Security Council resolution 757. 12. Donia and Fine, Bosnia and Hercegovina. 13. Prosecutor v. Stanislav Galic, “Appeals Chamber Judgement,” 30 November 2006, para. 593. 14. Donia Report, 16th RS Assembly, 12 May 1992. 15. Ibid., paras. 0190-8523 to 0190-8524. 16. General Philippe Morillon, UNPROFOR commander in 1993, also told the court about Milosevic’s ability to restrain the Bosnian Serbs when he wanted to—in both Sarajevo and Srebrenica. 17. When Mladic reported Turajlic’s murder by Bosnian Serb troops to the RS Assembly, the members broke into applause. Donia Report, 24th RS Assembly Session, 8 January 1993, paras. 0214-9927 to 0214-9928. 18. Tudjman also used the argument that Europe’s fear of an emerging Muslim nation in its “heart” would deter European reaction to the division of Bosnia between Croatia and Serbia. 19. “The Europeans expected me to concentrate on Bosnia . . . in fact the Security Council had required the UN to become massively unbalanced in favor of the problems of the former Yugoslavia, and I found myself increasingly thinking about Somalia.” Boutros Boutros-Ghali, Unvanquished: A US-UN Saga (Toronto: Random House, 1999). 20. The former Yugoslav president Josip Broz Tito was instrumental in creating the NAM during the cold war. 21. The ICJ issued two orders to the FRY to fulfill its obligations under the Genocide Convention. The order of 8 April 1993 required the FRY to insure “that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide.” Bosnia and Herzegovina v. Serbia and Montenegro, International Court of Justice, 8 April 1993. 22. UNSC resolution 819, 6 May 1993. 23. The Vance-Owen plan proposed to maintain Bosnia as a unitary state but to divide it into ten cantons (provinces) based on ethnicity. Three cantons were to be mainly Muslim, three mainly Serb, two mainly Croat, one mixed Muslim-Croat, and one (Sarajevo) a canton where all three ethnic groups shared power. 24. The Contact Group plan, developed in the spring of 1994, provided for Bosnia’s retention of the three eastern enclaves, Srebrenica, Gorazde, and Zepa. Under Dayton the enclaves were included in Bosnian Serb territory. Milosevic accepted the Contact Group plan but was unable to persuade the Bosnian Serbs to do so as well. While Izetbegovic agreed to the plan, he said openly that he did so only because he knew the Bosnian Serbs would reject it.

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25. Later estimates put the figure at 100,000 dead, according to the Research and Documentation Center in Sarajevo, based on confirmed dead and missing. The government-affiliated organization Research on Crimes against Humanity has challenged the lower figure. 26. With even more tragic consequences, the UN pulled its protection force out of Rwanda at the start of the hundred-day genocidal rampage that killed 800,000 people. 27. UN peacekeepers were familiarly called “blue helmets” for the distinct color of their helmets. 28. Extreme Croatian nationalists in western Herzegovina, under the nominal leadership of Mate Boban but in fact controlled by Tudjman in Zagreb, turned against Bosnian Muslims, forcing them out of official positions, then out of the territory altogether in the first half of 1992. They formed a separate army, the HVO, and declared a separate state, the Croatian Community of Herzeg-Bosna. Croatia sent troops and the wherewithal to conduct war, while formally in alliance with the Bosnian state. In April 1993 the situation erupted into all-out war. Tudjman and Milosevic maintained secret ties and discussed dividing Bosnia between them. The United States eventually stepped in and pressed Croatia to ally itself with the Bosnian Muslims. The success of these efforts turned the tide of war in Bosnia, as government forces were freed up to focus on the VRS and it was able to secure weapons transported through Croatia. Croatia also turned its forces against the Bosnian Serbs, culminating in Operations Flash and Storm in 1995, followed by the Croatian ground offensive into Bosnia itself, which was the key factor in getting the Serbs to accept the Dayton deal. 29. The Vance-Owen plan proposed to break Bosnia into cantons by ethnicity, legitimizing Bosnian Serb aggression against a UN member state. 30. As discussed earlier, Milosevic had not given up his goal of uniting all Serbs in one state. Only his method had changed. 31. The FRY embargo on the RS was also Milosevic’s attempt to secure the sympathy of his international negotiators in his efforts to get sanctions on Serbia lifted. 32. Del Ponte credits Lilic with revealing the existence of detailed SDC minutes to the prosecutor. Madame Prosecutor, 158. 33. In her book Del Ponte reveals that well after the trial had started, Belgrade had granted only one of seventy-seven prosecution requests to interview prospective witnesses. Vojislav Kostunica, then president of the FRY, personally discouraged Lilic from talking to the prosecution. Madame Prosecutor, 149, 155. 34. Rule 54 bis (F). 35. According to Edham Pasic, Lilic’s predecessor Dobrica Cosic, though a highly respected author and public figure, was Milosevic’s puppet, who chafed under and was humiliated by taking orders from Milosevic when he took on the role of FRY president. Pasic testified on 8 and 10 July 2003. 36. See Lilic’s testimony in chapter 3. 37. According to Lilic, testifying at Milosevic’s prompting, President Jacques Chirac of

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France guaranteed to Mladic that he would not be turned over to the tribunal if he let the pilots go. Chirac denies any such deal. 38. An attorney is generally restricted from cross-examining his own witness, since a purpose of cross-examination is to cast doubt on the witness’s credibility. 39. Testifying for the accused, Vojislav Seselj said that he had undertaken a thorough investigation of Srebrenica and concluded that Serbia was not involved. The VRS 10th Sabotage Detachment carried out the killings, but French intelligence was behind it, Seselj claimed. 40. See chapter 7 for a fuller explanation and critique of the traditional rule versus the modern rule. 41. CIJ article, “Stress of Milosevic Trial Brings Its Future into Question,” 4 September 2003, archived on www.iwpr.net. 42. If an accused becomes too ill to continue with his trial, the court is not required to dismiss the charges. Vladimir Kovacevic, charged with crimes during the siege of Dubrovnik after being transferred to The Hague on 23 October 2003 and examined by mental health experts, was found mentally unable to participate in his trial. Because his condition required urgent treatment, he was returned to Belgrade under provisional release. The proceedings were continued (postponed) a number of times over a two-year period. After new expert examinations and a hearing in December 2005, the trial chamber ruled on 12 April 2006 that he was unfit to stand trial, as he lacked the capacity to enter a plea and stand trial. The court order was “without prejudice to further proceedings should his mental health condition change.” The case was transferred to Serbia on 17 November 2006, a decision affirmed by the appeals chamber on 28 March 2007.

Chapter 11: Genocide 1. Genocide as a crime did not exist until after the Second World War, when it was named and defined to describe the extermination of the Jews. All but three of the accused at Nuremberg were tried for crimes against humanity, such as murder, extermination, and persecution. Once the crime of genocide emerged, it replaced crimes against humanity as the most egregious, precisely because it reflected a more accurate description of the extermination of six million Jews. Nevertheless, mass killing and accompanying destruction need not rise to the level of the Holocaust to be considered genocide. 2. Genocide and complicity in genocide are mutually exclusive. One cannot be convicted of both, as one who is complicit is an accomplice while someone guilty of genocide is a principal. Prosecutor v. Brdjanin, Trial Chamber, 1 September 2004, para. 723. See also “Appendix I: Law of the Tribunal,” 451–55. 3. The prosecution intended to introduce evidence of genocide in Kotor Varos but conceded that it had not done so. In the Krajisnik and Plavsic indictments the prosecution identified thirty-five sites where genocide was perpetrated in 1992. The lesser number in the Milosevic indictment reflects time restrictions rather than any concession that genocide was more limited.

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4. Bosnia-Herzegovina v. Serbia and Montenegro, International Court of Justice, Dissenting Opinion of Vice-President Al-Khasawneh, 26 February 2007, para. 48. 5. At this writing three military officers were on trial for genocide in Srebrenica, with a police commander charged with aiding and abetting. Prosecutor v. Vujadin Popovic et al., IT-05-88. Closing arguments ended on 15 September 2009. Judgment is pending. 6. In Prosecutor v. Radoslav Brdjanin the trial chamber held that the killings, property destruction, and forcible expulsion of thousands of Bosnian Muslims and Croats from the Bosnian Krajina in 1992 were not genocide. That substantially more people were expelled than killed negated a finding of genocidal intent as the only inference to be drawn, the court said. The appeals chamber affirmed. Brdjanin was a primary implementer of the ethnic cleansing campaign that drove non-Serbs from the Banja Luka region of Bosnia. He enthusiastically played his part. IT-99-36, Trial Chamber, 1 September 2004; Appeals Chamber, 3 April 2007. Another chamber decided that evidence of the violent takeover and ethnic cleansing of thirty-five municipalities in 1992 was insufficient to constitute genocide, though it included acts meeting the definition of genocide, because the evidence did not support a finding that the perpetrators (including Karadzic and Mladic) had genocidal intent, only that they intended to forcibly remove the Bosnian Muslims and Croats from the territory they claimed. The accused Momcilo Krajisnik was the RS Assembly president and participated in decision making at the highest level of the Bosnian Serb leadership, second only to Radovan Karadzic. Krajisnik was not indicted for the Srebrenica genocide. The prosecutor did not appeal the trial chamber’s finding that genocide was not proven for the ethnic cleansing of thirty-five municipalities in 1992. Prosecutor v. Momcilo Krajisnik, IT-00-39-t, Trial Chamber, 27 September 2006. The prosecution charged Goran Jelisic, head of Luka Camp at Brcko, with genocide. Though he styled himself the “Serbian Adolf ” and displayed “enthusiasm for committing the crimes,” including torture and murder, the trial chamber acquitted him of genocide. The Appeals Chamber affirmed. IT-95-10, Trial Chamber, 14 December 1999, Appeals Chamber, 5 July 2001. Milomir Stakic was charged with genocide for atrocities committed in the notorious detention camps at Trnopolje, Omarska, and Keraterm, including extermination of at least fifteen hundred prisoners. The trial chamber held that he lacked the intent to commit genocide and the Appeals Chamber affirmed. IT-97-24, Trial Chamber, 31 July 2003, Appeals Chamber, 22 March 2006. 7. The appeals chamber also overturned the conviction for complicity in genocide of Vidoje Blagojevic, commander of the Bratunac Brigade, who provided troops for the killing operation in Srebrenica, because the trial chamber found that he did not know about the mass killings taking place when he ordered his troops to participate. Two others indicted with him for genocide, Dragan Obrenovic and Momir Nikolic, pleaded guilty to persecution and the genocide charges were dismissed. IT-02-60, Trial Chamber, 17 January 2005, Appeals Chamber, 9 May 2007. 8. Milosevic, “Decision on Motion for Judgement of Acquittal,” 16 June 2004.

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9. Brdjanin, “Decision on Interlocutory Appeal,” 19 March 2004. 10. Before command responsibility comes into play the authority of the accused over the perpetrators, de jure or de facto, must be established. 11. “The Court [ICJ] can look at patterns of conduct throughout Bosnia because it is not constrained by the sphere of operations of any particular accused—and it should have done so.” Bosnia-Herzegovina v. Serbia and Montenegro, Judge AlKhasawneh Dissent, para. 42. The majority found that the evidence submitted by Bosnia-Herzegovina on the Eastern Bosnia campaign was not sufficient to support a finding of genocide, though it did conclude that the Bosnian Serbs committed genocide in Srebrenica. 12. The appeals chamber overturned convictions for murder and extermination because the trial chamber failed to state when these crimes became part of the joint criminal enterprise to forcibly remove non-Serbs from parts of Bosnia. The appeals chamber reduced Krajisnik’s sentence from twenty-seven to twenty years in prison. Appeals Chamber Judgment, 17 March 2009. 13. Any decision in the latest genocide trial (Popovic et al.) will only involve Srebrenica, which the tribunal has already held constituted genocide. 14. Donia Report, RS Assembly TR, 12 May 1992 session, paras. 00910-3537 to 00913550. 15. “Timid Justice: The ICJ Should Have Been Harder on Serbia,” Slate, 28 February 2007. 16. Martin Shaw, “The International Court of Justice: Serbia, Bosnia, and Genocide,” Open Democracy, 28 February 2007. 17. Bosnia-Herzegovina v. Serbia and Montenegro, Judge Al-Khasawneh Dissent, para. 51. 18. Ibid., para. 62. 19. This conclusion is based on evidence in the public record. Like the rest of the public, I was unable to gain access to documents that the trial chamber ruled confidential, including parts of Supreme Defense Council minutes. 20. Dermot Groome, 13 November 2007, correspondence with author. 21. Erdemovic served approximately three and a half years of his sentence before being granted early release. 22. According to Florence Hartmann, Del Ponte’s aide, Nice wanted to drop the genocide charge from the indictment, first for lack of evidence, but even as evidence became available, Nice and others persisted. She suggests that they had “orders” from their respective countries” but cites no evidence to support her assertion. The feud between Hartmann and Nice became public with an angry exchange of letters after both left the tribunal. Perelman, “Western Promises.” While noting Nice’s initial reluctance, Del Ponte wrote in her memoir that when more evidence of Milosevic’s involvement in Srebrenica became available, “Geoffrey Nice fought his hardest to make the genocide charge stick.” Madame Prosecutor, 158. 23. Vinko Pandurovic, commander of the Zvornik Brigade of the Drina Corps in the Bosnian Serb army, wrote the report.

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24. By 6 July, according to the prosecution’s amended indictment of Karadzic (2008), the decision to kill all adult male Bosniaks in Srebrenica had been made. 25. Croatia’s Operation Flash was designed to retake territory in Western Slavonia that the Serbs had taken from Croatia earlier in the war. Croatia succeeded in reasserting control, as nearly the entire Serb population of fourteen thousand fled or were expelled. Sources differ on the number of Serbs killed (soldiers and civilians), but none exceeds five hundred. Clearly Operation Flash was not a killing operation, though Serb propaganda may have portrayed it that way. Moreover, when the Croats attacked neither Serbia nor the RS did anything to defend the Serbs of Western Slavonia, a warning for their compatriots in the Krajina. 26. Borovcanin was deputy commander of the RS MUP Special Police Brigade. From 10 July 1995 he commanded a joint force of MUP units ordered to Bratunac. The ICTY indicted him on 6 September 2002 for aiding and abetting genocide, extermination, murder, persecutions, forcible transfer, and deportation. Together with six others he went on trial on 14 July 2006. Trial was completed on 15 September 2009. Judgment is pending. 27. In fact, at least 1,000 and possibly as many as 2,500 men were held in the Kravica warehouse when Serbian forces began shooting and tossing in grenades on the night of 13 July. From testimony by victim witnesses in the Krstic case, it appears that few survived. 28. Since women and children were being evacuated, it seems that Karadzic intended only for all boys and men to be killed. That Colonel Ljubisa Beara subsequently relayed Main Staff orders to kill all prisoners supports this interpretation. 29. Beara was indicted with Borovcanin and three others for genocide and conspiracy to commit genocide. The indictment included two additional men who were not charged with genocide. 30. Tolimir was indicted for genocide in Srebrenica and Zepa, among other crimes. He was arrested on 31 May 2007, after many years of evading arrest. 31. Deronjic did not recall Nikolic’s presence at the Beara meeting. 32. Donia Report, RS Assembly Transcript, 22–23 October 1995, para. 0215-4556. 33. Drazen Erdemovic initially tried to turn himself in at the American Embassy. When he met with no success he contacted the press; Serbian authorities got wind of his plan and arrested him. A journalist notified the tribunal, which immediately went public to insure that Erdemovic would not be “disappeared” while in Serbian custody. The Office of the Prosecutor prevailed upon Belgrade authorities to transfer Erdemovic to The Hague, where he pleaded guilty and, as someone directly involved, provided significant evidence of the Srebrenica massacre. 34. The VRS made the videos, apparently to record this historic moment for posterity. 35. Bildt, Peace Journey, 55 and 61. 36. Zepa was a nearby safe area also attacked by the VRS. Tuzla, also nearby, was in territory controlled by the Bosnian army. 37. In his book Carl Bildt explains why he believes that Milosevic knew what was happening in Srebrenica and could have stopped it if he chose: “I find it—as a mini-

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mum—extremely difficult to believe that the General Staff of the Yugoslav National Army (JNA) [by this time the VJ] in Belgrade would not have been aware of the evolving attack, and that they would not have told Milosevic. Even if they had not, with the warnings he received, not only from me, he is likely to have at least asked. And with the relationship he had at the time with Mladic, he should at the very least have been able to stop the attack, had he so chosen. This was the minimum. The maximum was that he was aware of it all and saw it as a useful operation to start to sort out the map in anticipation of the peace negotiations he now started to believe were imminent.” Peace Journey, 61. 38. Ibid., 61–66. 39. “Prosecution Submission of Expert Statement of Dr. Budimir Babovic Pursuant to Rule 94bis,” para. 160. 40. Donia Report, 52nd RS Assembly Session, 6 August 1995, paras. 0215-4229 and 02154239. 41. Ibid., 55th Assembly Session, 22–23 October, paras. 0215-4553 to 0215-4554. 42. Ibid., 54th RS Assembly Session, 15–16 October 1995, para. 0215-4482. 43. Ibid., para. 0215-4489. 44. Exhibit 469, tab 20, produced through Zoran Lilic. 45. Donia Report, 53rd RS Assembly Session, 28 August 1995, para. 0215-4393. 46. Del Ponte, Madame Prosecutor, 357. The documents also confirmed Serbia’s control and direction of the war in Bosnia, the Yugoslav army’s control over the Bosnian Serb army after the JNA was dissolved in 1992 and replaced by the VJ, and the manner in which Serbia supplied and financed Serb forces fighting in Bosnia. Ibid., 201–2. 47. In 2007 Marlise Simons, in a front-page article in the New York Times, also disclosed that Serbia intentionally withheld documents to thwart the ICJ proceeding. She reported being told by unnamed lawyers who saw the material that it documented Serbia’s direct involvement in the Srebrenica genocide of 1995. Simons’s sources confirm that the evidence made it into the record, but only on condition that it remain confidential. Simons quoted the internationally known Serbian human rights activist Natasa Kandic, who had spoken with a leading member of the Serbian legal team: “He was very pleased,” Kandic said, “but I confronted him. I said, ‘you did not tell the truth.’ The man . . . replied: ‘It’s normal, every country will do everything possible to protect the state. Bosnia wanted a lot of money for damages.’ ” Ms. Kandic added: “I said that one day the truth will come out. And my friend said: ‘But that’s the future. Now it’s important to protect the state.’ ” New York Times, 9 April 2007, § A, 1. 48. Del Ponte’s spokeswoman at the tribunal, Florence Hartmann, supported Del Ponte’s assertions in her book Paix et châtiment, not available in English. A special chamber of the ICTY convicted Hartmann of contempt of the tribunal for “conscious and deliberate obstruction of justice” by publishing information from two confidential ICTY appeals chamber decisions in her book and an article after leaving employment at the tribunal. As discussed here, Del Ponte published the same information, but no charges had been brought against her as of this writing. The special chamber fined Hartmann 7,000 Euros (slightly more than $10,000). The judges held 502  N o t e s

it irrelevant that the information revealed by Hartmann was already in the public domain. She has appealed. Judgment Summary for Florence Hartmann, Specially Appointed Trial Chamber of the ICTY, 14 September 2009. 49. Statements by prosecution personnel (specifically Hartmann, Del Ponte, and Nice) after the trial ended and they left ICTY employment have been vitriolic and accusatory, evidencing considerable behind-the-scenes infighting. All have gone public in interviews, letters to the editor, and articles, and in two cases with books (a third is likely). I have no way of sorting out the truth, if it could even be determined, and have chosen to stay out of the controversy as much as possible. For the purposes of this book, however, all three people agree that the SDC minutes established Serbia’s involvement in planning the attack on Srebrenica and the massacre that followed. 50. Del Ponte reveals that according to Svilanovic, Serbia was willing to make Mladic a scapegoat and hand him over to the tribunal, believing that Bosnia might then drop its case against Serbia. Madame Prosecutor, 206. 51. The prosecutors’ office received information about the existence of intercepted telephone conversations between Milosevic and Mladic that allegedly showed Milosevic’s responsibility for Srebrenica. Apparently the United States had control over the intercepts, as Del Ponte maintains that she wrote to Washington requesting them. Nice sought the court’s assistance, though he says he is still not sure the intercepts exist. Neither achieved success. Prosecution sources said that the intercepts “would reveal that the International Community could have known in advance what would happen in Srebrenica.” Geoffrey Nice, quoted by an on-line Croatian news source, Jutarnji List, www.jutarnji,hr, 16 September 2007. This important issue is subject to considerable controversy but is not strictly relevant to the trial. In an interview by the French writer and journalist Sylvie Matton, Del Ponte claims to have received information about a meeting establishing that some foreign officials knew what was planned for Srebrenica in advance but did nothing to stop it. The prosecution was unable to confirm this. Paris Match, 1 November 2006. It is unclear whether the reference is to the Bosnian Serbs’ intent to take over the enclave or their intent to commit genocide. In her book Del Ponte states that the “international community” did not know genocide would take place in Srebrenica, though it accepted the separation of men and women. In her own book, published in 2005, Matton relates an interview with Alain Juppé, French prime minister at the time of the massacre, in which Juppé told her, “It was widely known that the Serbs wanted to take the enclaves and annihilate the men.” Srebrenica: un génocide annoncé. None of the English-language sources I have reviewed corroborates this. In a Bosnian television interview in 2005 Richard Holbrooke said that he had instructions to sacrifice Srebrenica, Gorazde, and Zepa to get a cohesive map, which was necessary if the Bosnian Serbs were to accept a peace deal. Holbrooke later said that he misspoke. Sacrificing the enclaves does not mean sacrificing the people; rather, it referred to a negotiating position for a final map of Bosnia. The international envoy Carl Bildt wrote in his memoir that there had been no intelligence report of an impending major attack on Srebrenica. Bildt, Peace Journey, 60. Even as the operation began, analysts and intelligence units believed that it was a N o t e s   503

minor operation designed to reduce the size of the enclave. Ibid., 55. They did not anticipate the massacre. 52. Intercepted communication with Gojko Djogo, 12 October 1991. 53. Intercepted communication with Momcilo Mandic, 13 October 1991. 54. Intercepted communication with Miodrag Davidovic, 15 October 1991. 55. Karadzic speaking before the Bosnian Parliament on 15 October 1991, de la Brosse report, 3. 56. Donia Report, 17th RS Assembly session, 24–26 July 1992, paras. 0214-9581 to 02149584. 57. Acquittal Decision, para. 242. 58. 16th Assembly Session, 12 May 1992, Donia Report, paras. 0190-8531 to 0190-8533. 59. Ibid., 37th Assembly Session, 10 January 1994, paras. 0215-2150 to 0215-2152. 60. Acquittal Decision, para. 233. 61. Ibid. 62. Ibid., para. 164, referencing Prosecutor v. Jelisic. 63. Ibid., para. 185. 64. Ibid., para. 192, referencing transcript from Prosecutor v. Brdjanin. 65. Ibid., para. 200, referencing Adjudicated Facts from Prosecutor v. Tadic. 66. Ibid., para. 172, referencing transcript (under seal) from Prosecutor v. Brdjanin 67. Ibid., para. 246. 68. Ibid., para. 235. 69. Ibid., para. 236. 70. Ibid. 71. Ibid., para. 237. 72. The International Court of Justice in Bosnia’s suit against Serbia and Montenegro held that the government violated its duty to prevent and punish genocide by the Bosnian Serbs, over which it had substantial influence. The ICJ said that this did not subject Serbia to financial liability, however. 73. Acquittal Decision, paras. 304–8. 74. Complicity requires a finding of specific intent, where aiding and abetting merely requires knowledge of the principal’s specific intent to commit genocide.

Chapter 12: Interregnum 1. In part the tribunal’s secrecy derived from the need to protect confidential sources and witnesses and the general confidentiality required of lawyers, but it grew over time beyond what was necessary. 2. ICTY Rule 15 bis (C). 3. ICTY Rule 15 bis (D). 4. Prosecutor v. Seselj, Case no. IT-03-67-pT, “Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with His Defence,” 9 May 2003. 5. “The Code of Criminal Procedure of the Federal Republic of Yugoslavia (2001), which remains valid in Serbia, provides that imposition of defence counsel is mandatory in proceedings relating to offences which carry in excess of ten years imprisonment.” 504  N o t e s

Article 71(1). “The rationale behind the mandatory assignment of counsel in these jurisdictions appears to be that, in cases where the personal liberty of an accused is at stake, the right to a fair trial, which includes the right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings.” “Trial Chamber’s Reasons for Decision on Assignment of Defence Counsel,” 22 September 2004, 20. 6. Prosecutor v. Tadic, “Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,” 2 October 1995. The chamber found the ability of a judicial tribunal “to determine its own jurisdiction” is “a major part, of [its] incidental or inherent jurisdiction.” The UN Security Council had authority under article 41 of the UN Charter to establish the ICTY. The court decided that a threat to the peace in the former Yugoslavia justified invocation of chapter VII of the charter to establish an international criminal court. 7. On 28 June 1914 the young Serb Gavrilo Princep assassinated Archduke Franz Ferdinand, heir to the Hapsburg throne, in Sarajevo. Though Austrian officials concluded that he acted independently of the Serbian government, the Austro-Hungarian Empire used the incident to try to eliminate Serbia, which was a threat to its power in the Balkans. Austria-Hungary declared war on 28 July, leading to a world at war within weeks. 8. The revival of Ustasha symbols from the Second World War, which engendered fear among Croatian Serbs, could be relevant to the state of mind for self-defense. 9. In Stacy Sullivan’s in-depth account of Albanian-American assistance to the KLA, she discounts reports of Al Qaeda involvement: “[I]n April 1998, an Egyptian-born Frenchman named Claude Chiek Ben Abdel Kader, who claimed to be an operative for Al Qaeda, had approached the KLA’s Supreme Command in Tirana [Albania] and offered to provide guns, money, and fighters. Although the KLA was desperate for all three, the Supreme Command refused. Through its channels to the Albanian government, the United States had made it clear that it would not tolerate the rebels receiving any assistance from Islamic fundamentalists.” Sullivan, Be Not Afraid, 183– 84. Readers would be advised to examine with critical skepticism the identities and interests of groups making allegations of extensive Al Qaeda involvement in Kosova (ubiquitous on the internet), where the Albanian population practices a somewhat secularized version of traditional Islam as well as Catholicism. 10. “Reasons for Decision on Assignment of Defence Counsel,” 22 September 2004, para. 60, p. 24. 11. Ibid., para. 65, p. 26. 12. Ibid. 13. Ibid. 14. Kenney, who resigned his post in 1992 in protest over the Bush administration’s failure to stop Serbia’s ethnic cleansing, vigorously protested the NATO bombing of Serbia in 1999. 15. Marlise Simons, “Witnesses Pull Out of Trial After Judges Refuse to Let Milosevic Act as His Own Lawyer,” New York Times, 10 September 2004. N o t e s   505

16. Hutsch also interviewed Mladic in Sarajevo, “where he is now,” he said, getting the prosecution’s undivided attention. Asked about this, Hutsch replied that there were more than rumors about where Mladic was staying. Asked if he was aware that efforts had been made (in 1995–96) to free Mladic from ever having to surrender to the ICTY, Hutsch responded that he preferred to answer in a “more intimate atmosphere.” 17. In the United States, even where an accused hires counsel court rules require that counsel obtain court approval to withdraw after a certain point in the proceedings, since the court has the ultimate responsibility to assure that the accused receives a fair trial. 18. ICTY statute, article 20(1). Law on self-representation at the icty has continued to develop since the Milosevic case. 19. ICTY statute, article 21(4). 20. Since Judge Schomberg’s decision of 6 May 2003, the issue of Seselj’s right to represent himself in light of his continued obstructionism and abusive behavior has been litigated many times. In 2006 a trial chamber ordered that counsel be appointed to represent him. The appeals chamber overturned it, and later overturned the trial chamber’s attempt to reappoint standby counsel. Seselj’s behavior has not improved. See also 474 n. 22, above. 21. Prosecutor v. Blagojevic, case no. IT-02-60-ar73.4, “Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defence Team,” 7 November 2003. 22. Prosecutor v. Sesay et al., SCSL, 6 July 2004; Prosecutor v. Norman et al., case no. SCSL-04-14-t, “Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court,” 8 June 2004; Prosecutor v. Barayagwiza, case no. ICTR-07-19-t, “Decision on Defence Counsel Motion to Withdraw,” 2 November 2000. 23. “Prosecution’s Submissions in Response to the Trial Chamber’s 19 July 2004 ‘Further Order on Future Conduct of the Trial,’ ” 26 July 2004. 24. In the United States the right to self-representation is enshrined in the Constitution and explained by the U.S. Supreme Court in Faretta v. California, 422 U.S. 806 (1975). But in another case the Supreme Court ruled that the right is not absolute and that there is no right to self-representation on appeal: “Even at the trial level, . . . the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 254 (2000). 25. Farhad v. United States, 19 F.3d 1097, 1099 (9th Cir. 1999). 26. In light of the appeals chamber’s decisions in the Seselj case, it now seems unlikely. 27. The appeals chamber also appears to have responded practically to Seselj’s hunger strike by overturning the trial chamber’s imposition of counsel. If so, the tribunal is in danger of ceding much of its power to these obstreperous accused. 28. This is not to argue that all judicial systems are just, nor that all laws are. South African apartheid is only one example of an unjust law and an unjust judicial sys-

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tem. Unjust laws can be challenged within the legal or political system, while unjust legal systems must be resisted in the political arena. The issue deserves more serious consideration than is possible here. Readers are directed to the bibliography. 29. Seselj, “Decision on Appointing Counsel,” 23.

Chapter 13: The World According to Milosevic 1. A leading question is one that includes the answer, as in the following example: Milosevic: “Can we say that part of the Slovene intelligentsia in the 1990s had a clear tendency and plan from 1985 for Slovenia to secede?” Witness: “No doubt. They’d made a firm decision to leave.” 2. Sell, Slobodan Milosevic, 46. 3. Human rights groups estimated that approximately three hundred demonstrators were killed. 4. The Duma is the Russian parliament’s lower house. 5. Joint Statement by President Boris Yeltsin of Russia and Milosevic, 17 June 1988. 6. Rule 65 ter. 7. The prosecution’s videos had no evidentiary value. Though the court initially accepted them into evidence, it later reconsidered and excluded them. Still, given the uncorrected errors of Lituchy’s videos and the biased and unprofessional manner in which they were created, it is doubtful that the prosecution needed additional evidence to discredit them. “Decision on Prosecution Motion for Reconsideration regarding Evidence of Defence Witnesses Mitar Balevic, Vladislav Jovanovic, Vukasin Andric, and Dobre Aleksovski and Decision Proprio Motu Reconsidering Admission of Exhibits 837 and 838 regarding Evidence of Defence Witness Barry Lituchy,” 17 May 2005. 8. Two notorious serial killers in the United States: Bundy confessed to raping and killing thirty young women; Gacey was convicted of raping and killing thirty-two boys. Both were executed. 9. According to Nice, the prosecution has documents establishing this source for the commission. Testimony of Vlatko Vukovic, 1 November 2005. 10. Milosevic backtracked shortly after making this statement, eliciting Vukovic’s assertion that the commission’s purpose was to arrive at the truth. 11. Boris Tadic abolished the commission in early 2003, shortly after being appointed minister of defense in the reform government that emerged from the shakeup resulting from the assassination of Prime Minister Djindjic. 12. Nice quotes a commission document of 20 February 2002, testimony of General Bozidar Delic, 20 September 2005. “SMO” should most likely be “SSNO,” the federal secretary for national defense. 13. The prosecution erroneously translated “arbitrary” as “voluntary.” This does not change the essence of the passage: that the VJ had concerns about controlling the testimony of its officers. 14. As Delic testified, a war diary is very similar to an operational log, and the following definition of an operational log is roughly applicable to a war diary: “An operational

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log is a combat document into which, during a war, in chronological order, per day, are entered: All important events (state of the enemy and one’s own forces and losses), a short summary of all the commandant’s commands, the more important orders, data from the reports of subordinates, notifications received and sent, requests, and so on.” Required to be kept by “units of the level of the battalion or artillery battalion or higher, . . . it is safeguarded as a document of permanent value, so as to enable, after the war, study and analysis of combat operations of the units; it also serves for the writing of history.” Obviously the contents might have been very interesting to the court. 15. The Reka Plan was for the campaign of 27 April 1999 against the Carragojs, Erenik, and Trava valleys, discussed later in this chapter.

Chapter 14: Milosevic’s Loyalists 1. Under an ICTY agreement with the Netherlands, the Dutch government operates a detention unit in The Hague where detainees awaiting the conclusion of proceedings are housed. ICTY Rule 77 governs the tribunal’s contempt power. 2. Expert report of Phillip Coo, “OTP Military Analyst Report: Forces of the FRY and Serbia in Kosovo,” part II.B, section 5, para. 12, submitted by the prosecution on 29 May 2002. 3. It included the following charges: “constant tendency to use the VJ outside the institutions of the system; separating VJ units from the Yugoslav army; attempting to command VJ units by unauthorized persons; bypassing levels of command in official talks with VJ members; conducting personal [sic] policies on an illegitimate basis and groundless foundations; supplying material extra-legally.” 4. Ibid. 5. Milosevic asked the witness who should be afraid. “The terrorists, of course,” he replied, as if he could explain what Milosevic was thinking in 1995 at a meeting he did not even attend. Testimony of Djosan, 26 October 2005. 6. Human Rights Watch, Under Orders, 212. 7. Ibid., 212. 8. Testimony of Beqe Beqaj, 29 August 2002. 9. Testimony of Hani Hoxha, 3 July 2002; Ismet Haxhiavdija, 29 August, 2002; Behar Haxhiavdija, 2 September 2002. 10. Agim Jemini, 7 June 2002; Isuf Jemini, 24 July 2002; Agim Zeqiri, 20 February 2002. 11. Lutfi Ramadani, 11 June 2002; Mehmet Avdyli, 11 June 2002. 12. TR, 15 July 2002. 13. Ibid. 14. It appears that the Serbs did not call their war strategy Operation Horseshoe, the name of a much earlier plan. This plan was conflated by western sources with the operation conducted in 1999 to drive out the ethnic Albanian population, because the image described what actually happened. Gow, The Serbian Project and Its Adversaries, 207–9. 15. Nice quoting Janicevic to Jelic, 8 December 2005. 508  N o t e s

16. See chapter 3. 17. Jelic testified, “There was no joint operation. There was only fighting against terrorists when they would appear,” and “Not for a single moment did I deny that there was a joint struggle against terrorism.” 18. The OSCE report “As Seen, as Told” described the pattern witnessed by its verifiers during the early March attack on the Kacanik villages: “Their [KVM] patrols were initially blocked from proceeding to the affected villages. MUP and VJ forces then followed their pattern of surrounding the local villages, forcing the inhabitants to flee through the use of direct and indirect fire. By mid-afternoon, houses were burning in Gajre, Ivaja, Straza, Alil Mahala. MUP units appeared intent on destroying those villages.” 19. Nice reading Peraj’s statement during cross-examination of Kotur, 24 January 2006. 20. Haradinaj was found not guilty on 3 April 2008 after a 113-day trial. The prosecution appealed; the appeals chamber had not ruled as of this writing. 21. Scheveningen is the area of The Hague where the UN Detention Unit is located.

Chapter 15: A Case of Self-Defense? 1. Del Ponte announced that she was preparing an indictment against Tudjman when he died, and he was named in other indictments as part of a joint criminal enterprise to ethnically cleanse the Krajina of its Serb population with Operation Storm and to ethnically cleanse Herzeg-Bosna of its Muslim and non-Croat populations. Indictments were also brought against other Croats, including Generals Ante Gotovina, Ivan Cermak, and Mladen Markac, for war crimes and crimes against humanity, including forcible deportation of the Krajina Serbs from Croatia during Operation Storm. Their trial began on 11 March 2008. 2. Borisav Jovic, subpoenaed by the prosecution, also supported Milosevic’s political view of events, though his testimony about Milosevic’s overarching power aided the prosecution. 3. As long as a legal mechanism existed, whether or not it was used, Milosevic wrongly felt that he could not be held accountable under the theory of command responsibility. 4. While it is unclear, one assumes that Jarcevic meant “forced” conversion, which also does not fit the legal definition of genocide. 5. General Milan Celeketic was commander of the main staff of the Sarajevo Romanija Korps. 6. Gracanin was the caretaker president of Serbia between Stambolic’s ouster and Milosevic’s election in 1989. 7. B. Kostic, Jugoslav Kostic, Jovic, Sejdo Bajramovic, Bogicevic, and Tupurkovski. Slovenia did not send a representative. 8. On 4 October 1991 the EC’s Conference on Yugoslavia “condemned the constitutional coup launched by Serbia in the collective Presidency. The Chair indicated that the EC and its Member States would not recognize the situation created.” TR, 13 February 2006. 9. Sell asserts that after the student demonstrations and riots of March 1991 in BelN o t e s   509

grade, with the JNA backing down from staging a coup, Milosevic effectively controlled the JNA. Slobodan Milosevic, 137. 10. The witness did not say whether his boss included the JNA in his denial. 11. The question that Judge Bonomy referred to was: “The question I wish to ask you, in fact, is this: Was it Serbia—was Serbia a participant in the conflict? And before you answer, I’m going to read what I said on the occasion, and then you’ll be able to correct me or agree or explain what this was all about, because this is what it says here, that: ‘The authorities were demonstrating by armed attacks, demonstrating sovereignty and independence by constant armed attacks on the territories inhabited by Serbs. Over 100,000 refugees from Croatia to Serbia are a direct effect of this policy. On the other hand, there is no single Croat who fled from Serbia to Croatia because of national discrimination. Evidently, it is the actual Croatian government which has forced the Serbs in the Republic of Croatia to organise and defend themselves in order to prevent the repetition of genocide performed by the former Independent State of Croatia during the Second World War. “‘Since the Serbs in the Serbian Autonomous Province of Krajina and Slavonia and Baranja and Western Srem, being one part in the armed conflicts in Croatia, and according to the documents signed in Belgrade, a participant on equal footing in cease-fire monitoring, I deem the presence of their legitimate representatives in the procedure initiated today not only necessary but actually indispensable.’ So let me repeat my question to you now: Was Serbia a participant in the conflict, and what was the essence of the strivings made for the representatives of SAO Slavonia, Baranja and Western Srem, SAO Krajina, to become included into the work of the conference?” 12. Also interpreted as the Council of Coordination or, more fully, the Council for Coordination of Points of View on State Policy. 13. Indeed it was what Milosevic achieved for the RS under Dayton. 14. In Resolution 757 (May 1992), the UNSC “banned all trade and financial links with the FRY, froze all its overseas assets, forbade all types of cooperation, imposed a ban on all commercial flights and maritime links to the country.” Resolution 757 was reinforced a year later in April 1993 by Resolution 821, adding a ban against all transshipment of goods through FRY territory. Allcock, Milivojevic, and Horton, eds., Conflict in the Former Yugoslavia, 254–55. 15. UNSC Resolutions 819 and 834, April and May 1993, establishing Srebrenica, Tuzla, Gorazde, Bihac, Sarajevo, and Zepa as safe areas. 16. “Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]), Request for the Indication of Provisional Measures, Order,” 8 April 1993. 17. According to the ICTY indictment against him, Seselj was appointed Vojvoda by Momcilo Dujic, chairman of the Movement of Chetniks in the Free World, on 28 June 1989, the six hundredth anniversary of the Battle of Kosovo Polje. Prosecutor v. Vojislav Seselj, Indictment, 15 January 2003. 18. Some speculate that Seselj’s bizarre behavior and thought processes are the result of torture, to which he was allegedly subjected while imprisoned in the mid-1980s 510  N o t e s

for “counter-revolutionary activities.” Judah, The Serbs, 187; Sell, Slobodan Milosevic, 326. 19. On one occasion he ordered his bodyguard to beat up a lawyer, Nikola Barovic, after a joint television appearance. He laughingly insisted to the media that Barovic had slipped on a banana peel. Another time he brought a gun into Parliament. 20. In his book Vidosav Stevanovic writes that “Seselj’s statements were always in exact accordance with Milosevic’s intentions.” Milosevic: The People’s Tyrant (London: I. B. Tauris, 2004), 69. 21. BBC’s film Death of Yugoslavia (1995). 22. Emily Kerenji, “Vojvodina since 1988,” Serbia since 1989, ed. Ramet and Pavlakovic. 23. Throughout the trial Milosevic refused to address the judges by the required honorific “Your Honor.” Nor would he stand when addressing the court. 24. In this case Milosevic’s comment was not even true. He accused the ICTY of not prosecuting “anything for the greatest ethnic cleansing of all, the Storm operation.” 25. Prosecution evidence contradicted the view widely held among Serbs that Bosniaks fired on their own people to gain international sympathy and intervention, as did the trial chamber decision in the Galic case. 26. Radio Free Europe / Radio Liberty, South Slavic and Albanian Languages Service, translated by Patrick Moore, 15 June 2005. 27. “Decision on Prosecution’s Request for Certification of Appeal under Rule 73(B),” 18 January 2006. The trial chamber noted that ICTY rules allow the prosecution to present new evidence on appeal. 28. The war crimes prosecutor in Belgrade brought charges against nine Skorpion members for their part in the executions. Four were convicted and sentenced to between five and twenty years in prison. 29. Samir Krlic, “Bosnian Execution Video Shakes Families,” Associated Press, 3 June 2005. 30. Judge Kevin Parker, vice-president, “Report to the President: Death of Slobodan Milosevic,” May 2006, paras. 70, 120. 31. Ibid., para. 129. 32. Marlise Simons, “Expert Suggests Milosevic Died in Drug Ploy,” New York Times, 14 March 2006. 33. Parker Report, para. 111.

Chapter 16: Conclusions and Recommendations 1. Miroslav Milosevic (no relation to the accused), a former OTPOR member, undertook the feat. “Milosevic Grave Attacked to Expel Evil Spirits,” Agence FrancePresse, 5 March 2007. OTPOR (Resistance) was a youth movement in Serbia credited in large part with ousting Milosevic from power. 2. Dragana Nikolic-Solomon, Balkan Insight, 11 March 2006. 3. Nicholas Wood with Ian Fisher, “The End of Greater Serbia,” New York Times, 18 March 2006. 4. Nicholas Wood and Ian Fisher, “Milosevic Rites Draw a Throng in Serbian Capital,” New York Times, 18 March 2006. N o t e s   511

5. “Serbian Obit Thanks Milosevic for Blood, Fear and Lies,” Mina News Agency, 17 March 2006, published in Politika, reprinted on the web by BBC Monitoring Europe. 6. Arthur Max, “History Now Will Be Milosevic’s Judge,” Associated Press, www .WashingtonPost.com, 12 March 2006. 7. “Lessons Learned from the Milosevic Trial,” Forum, Online Opinion, 26 April 2006, http://forum.onlineopinion.com.au/view?article=4394. 8. “Lessons for Prosecutors of War Crimes Trials,” 13 March 2006, published on [email protected]. 9. Others charged with genocide beyond Srebrenica were acquitted. See Jelisic, Appeals Chamber, 5 July 2001; Brdjanin, Appeals Chamber, 19 March 2004; Stakic, Appeals Chamber, 22 March 2006; Krajisnik, Trial Chamber, 27 September 2006. Biljana Plavsic pleaded guilty to persecutions and the genocide charge was dropped. 10. Quoted in Max, “History Now Will Be Milosevic’s Judge.” 11. Testimony of Ismet Haxiavdija. 12. “Milosevic Dead: Reaction,” BBC on line, 11 March 2006. 13. Eric Stover, “Witnesses and the Promise of Justice in The Hague,” My Neighbor, My Enemy, ed. Stover and Weinstein, 118, 119. 14. Human Rights Watch, Weighing the Evidence, 1. The report noted the arrest and trial of Saddam Hussein and Charles Taylor. Since then the ICC prosecutor has indicted President Omar al Bashir of Sudan for genocide in Darfur and the court has issued a warrant for his arrest. The indictment of a number of other heads of state could be considered, but likely will not be forthcoming anytime soon. 15. Aryeh Neier, “Milosevic Trial Not in Vain,” OSI press release, 24 March 2006. 16. As Human Rights Watch concludes in its review of the Bosnia and Croatia parts of the trial, “The Milosevic trial opened the door on these state secrets. Evidence introduced at trial showed how those in Belgrade and the Federal Republic of Yugoslavia financed the war; how they provided weapons and material support to Croatian and Bosnian Serbs; and the administrative and personnel structures set up to support the Croatian Serb and Bosnian Serb armies. In short, the trial showed how Belgrade enabled the war to happen.” Weighing the Evidence, 2. 17. In her book Del Ponte criticizes the amici: “This was a bastardization of the customary practice that allows amici curiae to advise a court. The three attorneys . . . primarily provided support to Milosevic.” Madame Prosecutor, 142. 18. Human Rights Watch, Weighing the Evidence, 4. 19. Michael Farquhar and Janet Anderson, “Serb Leader’s Death Tragic for Victims,” Tribunal Update no. 444, IWPR, www.iwpr.net, 11 March 2006. 20. Mark A. Drumbl, “Milosevic Dies, Justice Denied,” Richmond-Times Dispatch, 15 March 2006. 21. Neier, War Crimes, 222. 22. According to court calculations the prosecution presented its case in chief in ninety four-hour trial days. Administrative matters and cross-examination increased the prosecution’s case to 294 partial days. HRW concludes, “The total length of actual

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court time is not unreasonable for a trial of this magnitude involving three conflicts over the course of nine years.” Weighing the Evidence, 61. 23. The first trial concerned Saddam’s response to an assassination attempt against him in the town of Al-Dujayl, including murder, arrest, detention, and torture of a large number of the town’s citizens, destruction of orchards and houses, and the show trial and execution of 148 people. 24. See Human Rights Watch, Justice for Iraq: A Human Rights Watch Policy Paper, December 2002, http://hrw.org/backgrounder/mena/iraq1217bg.htm. 25. Given that the court dismissed 130 crime scenes alleged but unproven at the close of the prosecution’s case while holding that the evidence still supported the sixty-six charges, the prosecution could have further reduced the number of sites. But since it produced little or no evidence on these crime sites, not much would have been saved. 26. Human Rights Watch, Weighing the Evidence, 52. 27. The report by Human Rights Watch notes the short time from indictment to trial and the even shorter time (twelve days) from joinder of the indictments to trial, making it impossible for the prosecution to restrategize its case or amend the indictments. Ibid. In Madame Prosecutor Del Ponte agrees that the case could have been streamlined with a longer period between joinder and trial. The prosecution did not seek a delay, however. 28. Human Rights Watch, Weighing the Evidence, 53. 29. The Human Rights Watch report supports giving Milosevic time limits, leaving it to him to decide how to use the time allotted. Ibid., 67. I disagree that the court predominantly followed this approach, particularly during the prosecution’s case with Judge May presiding. Moreover, even during the defense case the judges repeatedly intervened and showed exasperation when Milosevic examined on irrelevant matters or did other things that lengthened the process. It is also questionable whether such a noninterventionist approach is consistent with the court’s responsibility to assure a fair trial and uphold the integrity of the process. At the least, it allows the accused to use the trial to advance his political agenda. I agree that court-established time limits are an important and appropriate method of fulfilling the judicial responsibility to assure an expeditious process, as long as they are reasonable and the parties have the opportunity to appeal. In fact, the prosecutor appealed the trial chamber’s imposed time limit for its case based on the principle of prosecutorial independence. The appeals chamber denied the appeal. 30. Parker Report, para. 106. 31. Proceedings against Vojislav Seselj, and the tribunal’s failed attempts to control him, protect witnesses, and preserve courtroom decorum over a six-year period, offer another opportunity for analyzing the obstructionist behavior of the pro se accused and judicial effectiveness in dealing with it. 32. As David Crane, former chief prosecutor for the Special Court for Sierra Leone, writes about disruptive accused: “It is a painful realization for these accused that the

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law now controls them and not the other way around. . . . [They] are going through an emotional process of tyrants being humbled publicly before those they terrorized and they don’t like it. . . . . Their antics and acting out are not signs of a court or tribunal in disarray. They are signs of the powerful realizing that the rule of law truly is more powerful than the rule of the gun.” Scharf and McNeal, Saddam on Trial, 142. 33. ICTY rule 91 provides that a court can order a prosecutor to investigate and prosecute witnesses for giving false testimony. If they are found guilty, the court can impose fines of up to 100,000 euros, a prison sentence of up to seven years, or both. 34. Drumbl, “Milosevic Dies, Justice Denied.” 35. The ICC statute provides that victims can apply to the registrar to participate in the trial through a legal representative, who may represent one or more victims. They will be given the opportunity to present their views at appropriate stages of the proceedings, such as the opening, closing, examination of witnesses, and sentencing. The statute also provides for reparations and establishes a Victims Trust Fund to be financed through fines, forfeitures, and other sources. A Victims and Witnesses Unit provides counseling and makes arrangements for the protection of victim witnesses. Rome Statute of the International Criminal Court, article 68. 36. This is not to imply victims were relegated to a minor role in the Milosevic trial— only that their interests were sometimes overlooked. 37. Tribunal evidentiary rules allow for significant court discretion. While the trial chamber in Milosevic refused to admit the Skorpion video, it accepted video evidence presented by Milosevic rather than insist that he call those appearing in the videotape so they could be cross-examined by the prosecution. 38. ICTY rule 54 bis states that any party to a proceeding may request the trial chamber to order a state to provide documents or information. See also “Decision on the Objection of the Republic of Croatia to the Issuance of a Subpoena Duces Tecum,” 18 July 1997, in which a trial chamber held that the tribunal had inherent authority to issue orders to states or their high officials necessary for the conduct of a trial. As with other ICTY orders, defiance of the order can lead to a contempt proceeding. 39. The ICTY was established under chapter VII of the UN Charter, which creates a binding obligation on all member states to fully cooperate with the tribunal. Chapter VII gives the Security Council authority to enforce its orders through sanctions and, in serious cases threatening the peace, the use of force. 40. Marc Perelman attributed the information to both Florence Hartmann and Geoffrey Nice. Perelman, “Western Promises.” 41. Del Ponte, Madame Prosecutor. 42. Former United States official, confidential communication to author, 10 November 2006. 43. Perelman, “Western Promises”; Hartmann, Paix et châtiment. Pierre Hazan also alleges that the United States and other western nations withheld documents from the ICTY, some of which would have been useful in the Milosevic trial. Justice in a Time of War, 192. 44. Perelman, “Western Promises.” End dates for trials and appeals were extended. 514  N o t e s

45. Hazan, Justice in a Time of War, 202. 46. Paris, Long Shadows, 409. 47. Peter Kammerer, “Experts say efforts to obtain justice for peoples oppressed by brutal regimes still have a long way to go,” South China Morning Post, 1 August 2005, posted on [email protected], 31 July 2005. 48. Center for Balkan Development, Maynard, Mass., 11 March 2006. 49. Robert H. Jackson, “The Rule of Law among Nations,” speech presented to the American Society of International Law, Washington, 1945, American Bar Association Journal, June 1945, 290–94.

Appendix I: Law of the Tribunal 1. Crimes against humanity in other (non-ICTY and ICTR) contexts do not require an armed conflict. 2. The definition of crimes against humanity under customary international law (but not in ICTY, ICTR, or ICC statutes) protects combatants as well. 3. Prosecutor v. Krnojelac, Appeals Chamber, 17 September 2003, para. 29. 4. Prosecutor v. Tadic, Appeals Chamber, 15 July 1999, para. 190. 5. Prosecutor v. Vasiljevic, Appeals Chamber, 25 February 2004, para. 96. 6. Prosecutor v. Krnojelac, Appeals Chamber, 17 September 2003, para. 171. 7. Prosecutor v. Halilovic, Trial Chamber Judgment, 16 November 2005, para. 74.

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522  B i b l i o g r ap h y

index

Abdic, Fikret, 494 n. 28 ABiH, 213, 217, 237, 247, 255, 308, 314, 490 n. 15; in Srebrenica, 292, 293, 295, 297, 300, 304, 305, 308 Abrahams, Fred, 41, 42 acquittal decision, 58, 286–91, 316–22, 346, 413, 414, 431 Adzic, Blagoje, 123, 153, 154, 160, 194, 397, 398, 401 Agani, Fehmi, 80 aiding and abetting, 27, 119, 286, 287, 290, 504 n. 74 Akashi, Yasushi, 251, 258, 263, 264, 306–9, 418, 419 Albania, 28, 32, 348, 375; Kosova annexation and, 347, 351; refugees in, 20, 29, 35, 86, 97, 112, 356, 361, 376, 377, 389, 390 al Bashir, Omar, 512 n. 14 Albright, Madeleine, 327, 444 Aleksovski, Dobre, 357 Alispahic, Azmir, 424 Alispahic, Nura, 424 Al-Khasawneh, Awn Shawkat, 285, 289, 290, 499 n. 4, 500 n. 11, 500 n. 17 Alliance of Detainees of Bosnia-Herzegovina, 240–42 Al Qaeda, 327, 505 n. 9 American Association for the Advancement of Science, 91 American Bar Association Central and East European Law Initiative (ABA/CEELI), ix, 91 amicus curiae, 11, 73, 109, 135, 208, 236, 247,

277, 278, 286, 294, 329–31, 341, 413, 414, 434, 436, 443, 446, 512 n. 17 Amnesty International, 155 Andric, Vukasin, 357–59 Annan, Kofi, 264 Anti-Terrorist Operation, 139, 155, 170, 222, 226, 227, 233, 244, 256, 275, 489 n. 20; Srebrenica and, 301; video of, 140, 174–79, 415, 416 Antonic-Simic, Olivera, 104, 105 appeal, 44, 55, 329, 334, 425; interlocutory, 137, 485 n. 33 appeals chamber, 45, 84, 277, 286–90, 303, 316, 322, 325, 335–41, 370, 429, 434, 435, 441 Arbour, Louise, 3, 67 Arkan (Raznatovic, Zeljko), 153, 156, 194, 195, 222, 383, 438; Bijeljina, 233, 234; JNA and, 188, 189; Milosevic and, 336–38; MUP and, 155, 170, 217, 230; Red Berets and, 155, 170, 233, 244; retraining camp of, 150, 232; SDB and, 230, 231; smuggling, 231, 232; Tigers, 42, 139, 150, 155, 170, 171, 188, 189, 197, 217, 223, 230–33, 244, 253, 256, 320, 374, 494 n. 28; VJ and, 217, 231, 244, 337 Arria, Diego Enrique, 258–62, 266 ARSK, 162, 174, 196, 201, 398, 415; creation of, 148, 160, 199, 200; JNA command of, 155; Milosevic’s control of, 157, 160, 163, 164; Serbia’s support of, 160, 166, 176, 196, 216, 217, 272, 433; in Srebrenica, 310 asanacija, 482 n. 3 Ashdown, Paddy, 34–42, 114, 125 assassination, 171, 179–81, 259

Association of Srebrenica Mothers, 432 Atlagic, Marko, 393–97 Avdic, Safet, 247 Avdiu, Bilall, 60 Avdyli, Mehmet, 508 n. 11 Avramov, Smilja, 331, 332 B-127, 216, 218 B-129, 230–34 B-1003, 233, 234 B-1054, 234 B-1120, 247 B-1401, 292–94 B-1461, 247 B-1493, 223 B-1505, 237 B-1701, 228–30 B-1804, 296, 297 Babic, Milan, 122, 123, 131, 154, 157–64, 167, 173, 175, 176, 195, 196, 202, 204, 411, 425, 426, 487 n. 6 Babik, Mirko, 356 Babovic, Budimir, 138–40, 230, 273, 309, 310 Babush Hill, 60 Badza, 139, 155, 166, 273 Bajramovic, Sejdo, 509 n. 7 Bakalli, Mahmut, 25, 41, 47, 114 Balaj, Fazli, 64 Balevic, Mitar, 356–58, 483 n. 6 Ball, Patrick, 91, 92 Banja Luka, 202, 231, 499 n. 6 Baqaj, Gani, 87 Barani, Halil, 30 Barnett, Michael N., 495 n. 6 Bassiouni, M. Cherif, 473 n. 13 Batajnica, 102, 105, 245, 382 Batkovici, 242, 243, 302 BBC, 87, 357, 396, 397, 400, 412, 415 Beara, Ljubisa, 300–302, 501 nn. 28–29 Begici, 318 Behrami, Ajmoni, 29 Bela Crkva, 386–89 Beli Dvor, 103 Belgrade, 400; arrests in, 180; authorities in, 57, 58, 73, 81, 101, 142, 184, 199, 261, 361; cooperation by, 102, 107, 178, 181, 492 n. 6; lack of cooperation by, 57, 58, 75, 107, 111, 117, 136–38, 180, 315, 316, 362, 365, 497 n. 33. See also FRY; Serbia Belgrade Television, 86, 131, 399 524  I n d e x

Benkovac, 162 Berisha, Agron, 29 Berisha Shyrete, 95–98, 105 Bihac, 125, 162, 200, 203, 204, 217, 251, 490 n. 16, 493 n. 8, 494 n. 30 Bijeljina, 194, 195, 214, 225, 233, 242, 243, 285, 301, 318, 414, 494 n. 30 Bildt, Carl, 24, 307–9, 419, 501–2 n. 37, 503 n. 51 Bissett, James, 334 Blagojevic, Prosecution v., 302, 341, 342, 499 n. 7, 506 n. 21 Blair, Tony, 36, 38, 425 Boban, Mate, 497 n. 28 Bogdanovic, Radmilo, 161, 411 Bogicevic, Bogic, 123, 398–400, 509 n. 7 Bogojevci, 398 Bonomy, Iain, 40, 62, 64–66, 68, 108, 109, 323, 324, 334–36, 338, 339, 340, 348, 357, 358, 367–69, 377, 382, 383, 387, 388, 395, 397–99, 403, 412, 417, 419, 423, 510 n. 11 Bor, 99–101, 173 Borisavlijevic, Slobodan, 102 Borovcanin, Ljubomir, 300, 501 n. 26 Borovo Naselje, 188 Borovo Selo, 184 Bosanac, Vesna, 189–91, 194 Bosanska Krupa, 214 Bosanski Novi, 200, 214, 285, 318, 414 Bosanski Samac, 214, 244 Bosnia-Herzegovina: arms shipments to, 205; Croatia’s peace with, 264; defense of, 133, 205, 213; divided, 125, 161, 162, 212, 224; ethnic partition of, 261, 307, 317, 490 n. 15; government of, 252, 255, 258, 263, 268; independence of, 17, 220, 244, 253, 351, 493 n. 13; liquidation of leaders in, 223; Milosevic’s interest in, 124, 126, 195, 200; SFRY presidency and, 398, 399; sovereignty of, 213, 214, 217, 404; UN intervention in, 237; war crimes court of, 474 n. 24; war deaths in, 497 n. 25 Bosnia-Herzegovina v. FRY/Serbia and Montenegro, 58, 180, 259, 260, 271, 285, 288–90, 315, 316, 407, 443, 444, 489 n. 21, 496 n. 21, 500 n. 11, 502 n. 47, 503 n. 50, 504 n. 72 Bosnian Army, 213, 217, 237, 247, 255, 314, 490 n. 15; in Srebrenica, 292, 293, 295, 297, 300, 304, 305, 308

Bosnian Croats, 214, 264, 269 Bosnian Serbs, 220, 224, 230, 353; as camp guards, 247; Dayton and, 270; forces of, 227, 260, 304–7, 319; FRY’s support of, 18, 217, 255, 256, 272, 311, 406, 407, 433, 493 n. 8; Geneva Conventions and, 419; genocide by, 290, 309, 316–21, 418; intransigence of, 267, 268; JNA’s arming of, 184, 216, 311; from Krajina, 131, 150, 255, 285, 288; leadership of, 223, 252, 255, 264, 265–70, 288, 303, 312, 319, 320, 404, 406, 418; Milosevic’s control over, 205, 256, 257, 262, 265, 266–71, 307, 311–14, 319, 404, 406, 496 n. 16; police of, 217, 233, 234, 244; siege warfare practiced by, 17, 182–97, 215, 219, 251–62, 263, 289, 431, 437, 496 n. 13; territory of, 213, 214. See also VRS Boutros-Ghali, Boutros, 259, 263, 496 n. 19 Bozovic, Radojica (Kobac), 217 Branjevo Farm, 295 Bratunac, 214, 224–26, 228–30, 298, 300, 302, 422 Bratunac Brigade, 295, 301, 499 n. 7 Brcko, 214, 221, 237, 285, 318, 414, 499 n. 6 Brdjanin, Prosecutor v., 287, 289, 499 n. 6, 512 n. 9 Brdo, 318 Broz, Josip (Marshal Tito), 15, 16, 120, 148, 156, 162, 173, 212, 346, 496 n. 20 Bubanj Potok, 139 Budding, Audrey, 347 Buha, Aleksandar, 219 Buja, Shukri, 59, 64 Bulatovic, Kosta, 370, 371, 444 Bulatovic, Momir, 132, 142–46, 163, 270, 401, 405 C-037, 147, 159 C-47, 232 C-57, 187–89, 192, 301, 302 Cafa Prusit, 389, 390 camps, 23, 142, 214, 215, 240–48, 268, 274, 285, 289, 432; Bosniak, 241; Croatian, 240, 241; JNA and, 244, 246, 247; Keraterm, 249, 318, 437, 499 n. 6; Manjaca, 245, 249; Omarska, 249, 250, 318, 337, 499 n. 6; for Serbs, 149, 150, 232; Specials, 242, 243; Trnopolje, 249, 250, 318, 437, 499 n. 6 Candic, Mustafa, 149, 152, 153 Captain Dragan, 154, 172–79

Carragojs valley, 382 Carrington, Peter, 194, 197, 317, 405 Carrington Plan, 131, 132, 134, 142–46, 162, 163, 203, 331 case management: by defense, 62, 350, 356, 361–63, 390–92, 412, 413, 424, 425, 435; by prosecution, 42, 55, 58, 119, 151, 164, 206, 208, 210, 248, 249, 439, 440, 512–13 n. 22, 513 n. 27; reduced scale of, 43, 45, 55, 116, 513 n. 25. See also trial: management of Catic, Hajra, 432 Cavoski, Kosta, 352, 353 Cazin, 125, 212 Celeketic, Milan, 201, 396, 509 n. 5 Celina, 26, 28, 376, 385, 386, 389 Celopek, 247 Center for the Defense of Human Rights and Freedoms, 30, 32 chain of command, 114, 155, 217, 230, 375; alternative to, 47–49, 160, 164. See also Joint Command charges and counts, ix, 12, 21–23, 317, 321; Bosnia, 214, 215, 284; Croatia, 118, 186; excess, 6, 58, 439, 440, 513 n. 25; Kosova, 26, 346; proving, 55 Chartier, Christian, 436 Chetniks, 155, 223, 232, 236, 237, 408, 411 Chirac, Jacques, 498 n. 37 Ciaglinski, Richard, 52–55, 112, 383–85 Cilipi airport, 183 civil law system, 56, 207, 209, 297, 325, 360, 488 n. 14 Clark, Wesley, 50–52, 69, 70, 112, 113, 311–15, 327, 328, 372, 425 Clinton, Bill, 25, 205, 237, 315, 327, 332, 361, 391, 425 CNN, 357 Coalition for International Justice, x, 84 Code of Professional Conduct for Defence Counsel, 33, 339, 340 Cohen, William, 314 collective guilt, 13, 22, 118–20, 326 command responsibility, 24, 27, 34, 39, 114, 115, 118, 119, 140, 160, 214, 284–86, 296, 309, 434, 472 n. 5; in JNA, 193. See also Milosevic, Slobodan: command responsibility of; Milosevic, Slobodan: de facto command responsibility of; Milosevic, Slobodan: de jure command responsibility of I n d e x   525

Commission for Cooperation with the ICTY, 362–69, 388, 507 nn. 9–12 common law system, 177, 207, 209, 360, 434, 488 n. 14 Communist Party, Serbia, 15, 16, 181, 350 Communist Party, Yugoslavia, 120, 346, 354; Milosevic’s speech to, 126; Slovenia and, 127 conscripts, 150. See also desertion; draft resistance conspiracies: alleged by Milosevic, 24, 68, 82, 102, 118, 152, 326, 327; alleged by Seselj, 423 Constitution, Croatia, 16, 121, 394, 396 Constitution, FRY, 72, 113, 131, 141, 353, 373–75, 412 Constitution, Serbia, 72, 126, 141; autonomy of provinces, 16, 120, 122, 347–49, 352–54, 371, 372, 400; usurpation of federal power, 352–54 Constitution, Yugoslavia (SFRY), 15, 120, 123, 345–48, 352–54, 400, 401, 486 n. 43 Constitutional Court of Kosova, 349, 352 Constitutional Court of Serbia, 140, 141, 352 Constitutional Court of Yugoslavia, 351 Contact Group, 46, 72, 217, 252, 261, 355, 356, 477 n. 1; plan of, 266, 404, 407, 492–93 n. 7, 496–97 n. 24 contempt power, 34, 105, 106, 341, 371, 392, 442, 444 coordinating office, 122, 167–70 co-perpetrators, 129, 145, 153, 157, 474 n. 19, 477 n. 3, 478 n. 7, 481 n. 7, 487 n. 5, 489 n. 6 Cosic, Dobrica, 131, 403, 497 n. 35 Council for Harmonization, 355, 403, 405, 406 coup d’état, 123, 124, 153, 398, 399, 509 n. 8 cover-ups: JNA/VJ crimes, 367; MUP Racak investigation, 67; Suva Reka massacre, 98–109, 115, 116, 420 Crane, David, 513–14 n. 32 crisis staff, 225, 233 Croatia: army of, 150, 183, 185, 190, 310, 314; Bosnia’s peace with, 264; ceasefire in, 195, 196; demilitarization of, 250; fascism in, 409, 410; government of, 201, 263, 396; independence of, 17, 121, 124, 149, 158, 169, 351, 405, 493 n. 13; National Guard of, 187; negotiations with, 204, 205; police of, 396; war in, 149, 151, 157–59, 182–211, 298 Croatian Democratic Union, 121, 155, 394 Croatian Fascists, 16, 23, 121, 142, 158, 159, 526  I n d e x

172, 186, 192, 292, 326, 394, 408, 432, 475 n. 6, 488 n. 8 Croatian Serbs, 118, 122, 199, 204, 219, 232, 393, 396, 416, 488 n. 11; autonomy of, 353, 354, 394, 405; betrayal of, 18, 130, 149, 150, 162, 196, 202, 203, 403, 490 n. 13, 501 n. 25; dependence on Serbia, 163, 195, 311; discrimination against, 133; financial support of, 18, 155, 166–68, 176; JNA/MUP assistance to, 152, 160–62, 168, 170, 176, 184, 197, 397; JNA withdrawal from, 196; leaders of, 157, 165–67; Milosevic’s control of, 157, 160–64, 195, 196, 201, 205, 510 n. 11; Milosevic’s meeting with, 147; minority status of, 16, 121, 394, 396; police of, 159, 160, 168, 175; sanctions against, 149; self-defense by, 155, 169; Serbia/FRY supplies to, 150, 157, 160, 161, 163, 166–68, 311, 412; Vance plan and, 196; Z-4 plan for, 203. See also ARSK Croatian Spring, 125 Crosland, John, 36, 47–49, 113 cross-examination by Milosevic: abusiveness of, 60, 84, 85, 141, 144, 146, 163, 236; aggressiveness of, 31, 82–85, 494 n. 32; argument as, 31, 245; to attack credibility, 31, 39, 49, 98, 125, 144, 145, 150, 151, 190, 191, 234, 235, 241, 245; commentary as, 31, 33, 58, 78, 163, 202, 236, 245; competence of, 27, 140, 141, 145, 154, 155, 163, 171; to confuse, 90, 98; ineptitude of, 40, 49, 100, 101, 125, 126, 146, 191, 193, 197, 198, 229, 231–35, 243, 268, 309, 314, 343, 386, 387, 439; to intimidate, 79, 82, 90, 144; irrelevance of, 44, 49, 82, 125, 207, 229, 234–36, 249, 324, 343; Milosevic praised for, 32; repetitiveness of, 31, 44, 58, 249, 324, 441; as speechmaking, 31, 44, 343, 441 cultural sites: Bosnian, 215, 234, 494 n. 31; Croatian, 182–94; Kosovar, 21, 26, 29, 48, 92–94, 112, 318; Serb, 94, 347, 377; UNESCO, 142, 182–87, 398 Cutiliero Plan, 404 Dalj, 150 Dalmatia, 172, 181, 182–85, 199 Dayton Peace Agreement, 18, 50, 73, 79, 165, 202–6, 213, 214, 220, 256, 261, 270, 271, 274, 311–13, 411, 418, 472 n. 7, 472 n. 10, 473 n. 13, 496–97 n. 24, 497 n. 28 Death of Yugoslavia, 396, 397, 399, 412

Dedaj, Merita, 376 defense case, 81; adequate time and facilities for, 110, 208, 275–78, 323, 333, 341, 350; assistance to, 10, 11, 129, 210, 276; deadlines for, 393, 424; delays in, 324; equality of arms in, 275, 277, 323, 341; hearsay nature of, 62–67, 331, 332, 357–59, 366, 371, 377, 378, 381, 388, 390–92, 395, 403, 404, 407, 412–14, 419, 420; liaison officer for, 277, 337; mismanagement of, 356, 361, 362, 366, 390–97, 424, 425, 435; against NATO, 22–24, 40, 354, 407; opening statement of, 21–24, 326–28, 330, 333; political nature of, 7, 13, 21–24, 34, 40, 82, 110, 151, 229, 326, 330, 346, 350, 355, 407; pre-defense conference, 323; strategy of, 276, 325, 326, 343, 354, 357, 372, 388–92, 408, 416, 417. See also cross-examination by Milosevic; defenses defense counsel, 81, 208, 209, 247, 278, 366, 425, 436, 446; application to withdraw, 322, 337–41; appointment of, 325, 328, 329, 335, 339, 414, 415, 441, 443, 504–5 n. 5; duty to client, 330, 339, 340; duty to court, 330, 339, 441; instructions from client, 330, 333, 335, 337, 339, 414, 425. See also Higgins, Gillian; Kay, Stephen defenses, 230, 302; affirmative, 247; civil war, 23, 24, 119, 133, 237, 247, 269, 381, 407; crimes by rogue elements, 24, 38, 86, 97, 98, 114, 156, 303, 346, 372, 394, 395; Geneva Conventions followed, 372, 373, 391, 392, 419; humanitarian aid, 24, 166, 167, 218; illegitimate, 63, 190, 326, 378, 391, 393, 395, 410, 419; justification (tu quoque), 22, 23, 32, 125, 352, 372, 373, 376, 377, 380, 382, 393, 410; KLA as cause, 327, 346, 372, 376–80; lack of control over, 24, 86, 97, 98, 114, 119, 148, 190, 216, 234, 257; lack of knowledge, 24, 308, 392, 417–20; legitimate, 23, 31, 119, 163, 257, 294, 326, 327, 346, 372, 373, 390, 391, 444; NATO as cause, 23, 58, 93, 112, 327, 346, 354–60, 372, 376, 377, 380, 381, 390, 391, 444; noninvolvement, 17, 119, 139, 148, 228, 233, 257, 303, 352, 395; prevention and punishment of offenders, 24, 39, 42, 346, 372–74, 394; response to terrorism, 22, 26, 28, 37, 53, 54, 59, 62–70, 346, 372, 374, 378, 380–84, 389; self-defense, 23, 119, 133, 155, 169, 257, 372, 380, 389, 393–429; spontaneous acts, 119,

306, 346, 372; staging of ethnic cleansing and injuries, 356, 357, 372, 378, 379, 390, 391; voluntary population movement, 53, 92, 200, 201, 372, 396; war causes deaths and damage, 250, 387, 394, 395. See also Milosevic, Slobodan: as peacemaker De la Billiere, Peter, 91 Delic, Bozidar, 39, 40, 89–91, 362–65, 373, 374, 381, 387 Delic, Rasim, 492 n. 3 Del Ponte, Carla, 10, 12, 18, 25, 30, 34, 44, 107, 117, 151, 180, 271, 275, 315, 316, 319, 409, 410, 423, 432, 472 n. 11, 473 n. 16, 476 n. 13, 471 n. 1, 489 n. 20, 503 n. 51 De Michelis, Gianni, 129 Democratic League of Kosova, 47, 79, 80, 376 Deronjic, Miroslav, 224–30, 233, 263, 297– 303, 309 desertion, 154, 187, 188, 222, 223, 411 detention facilities. See camps Detention Unit, 42, 277, 329, 426–28, 508 n. 1 Devrnja, Momo, 125 Dicker, Richard, 432 Dimitrijevic, Aleksandar, 48 Djakovica, 40, 362, 365, 375–77, 382–85, 389 Djeneral Jankovic, 378 Djeric, Vladimir, 137 Djindjic, Zoran, ix, 4, 25, 30, 34, 107, 108, 473 n. 16, 488 n. 13; assassination of, 171, 179–81, 210, 493 n. 11 Djokovic, Milenko, 189 Djordjevic, Miloslav, 122, 124, 138, 139, 167–70 Djordjevic, Vlastimir, 50, 51, 66, 67, 101–3, 481–82 n. 2 Djosan, Milos, 364, 368, 377, 382, 383 Djukanovic, Milo, 144, 145, 373, 478 n. 8 Djurevic, Krsto, 183–85 Doboj, 214, 243 Dobricanin, Slavisa, 62, 68, 69 documents: accused’s access to, 180, 315, 362– 69, 492 n. 6; archives, 117, 129, 137, 363, 443; Assembly of Serbia, 138; attack order for Kosova, 71; authentication of, 63, 237– 39; from Bosnian Serb Headquarters, 420; Boutros-Ghali report (1992), 263; calendar of Ante Markovic, 129, 276; Captain Dragan’s Fund, 174; Commission for Cooperation with ICTY, 362–69, 388, 507 nn. 9–12; confidential, 310, 315, 316, 319, 443, 489 n. 21, 500 n. 19, 502 n. 47; court-ordered I n d e x   527

documents (continued) production of, 368; created in anticipation of trial, 362, 363, 442; death investigation report, 426–29; diaries of Cyrus Vance, 194–98; Directive Seven, 296; Dubrava warden’s letter, 420; Duma Resolution condemning Solana, 355; DU memoranda, 426; Dutch Government Report on Srebrenica, 306; Eremija letter, 193; as evidence, 119, 166, 174, 176, 179, 193, 270, 271; exculpatory, 250; fraudulent, 145, 146, 178, 190, 236–39, 343, 378, 379, 442; FRY defense plan, 136, 137; FRY misrepresentation to UN Security Council, 418; incriminating, 63, 64, 88, 108, 129, 152, 166, 174, 189, 193, 218, 223, 254, 307, 315, 316, 391, 392, 420; Joint Command, 136, 374, 375, 392; Jovic’s diary, 129, 132, 197; Kirudja diary, 200; map of Kosova war plan, 384, 392; Rade Markovic’s statement to police, 102–5, 108, 115; Milosevic’s statement to Serbian police, 166, 218, 233, 403; Mladic’s personnel file, 316; Mladic’s statement on genocide, 289; order transferring JNA officers, 168; Pavkovic’s letter to Milosevic, 76, 77; Perisic’s letter to Milosevic, 76, 373; presidency of FRY, 136; presidency of Serbia, 136; problems with, 62–64, 66, 270, 271, 363, 420; Red Beret video, 140, 174, 176, 179; Reka Plan, 368; RS assembly minutes, 218–24, 230, 233, 289, 312; rule on production of, 485 n. 32; on Serbia in Bosnia, 423; of Serbian MUP, 136; Serbia SDB, 136; Skorpions and Srebrenica, 420, 421; on Srebrenica, 306, 309, 417, 421; Stevanovic’s diary, 108, 109, 420; Supreme Command, 136, 374, 375; of Supreme Defense Council, 136, 180, 181, 270, 271, 310, 311, 315, 316, 319, 489 n. 21, 497 n. 32, 500 n. 19, 503 n. 49; Tudjman’s notes, 201; UNESCO protest, 398; UN secretary general’s report, 1992, 405, 407; value of, 512 n. 16; VJ archives, 363; VJ war diaries, 365, 368, 384, 389; VJ work notebooks, 365, 366; volume of, 433; withholding of, 514 n. 43; withholding by Serbia of, 136–38, 365–69, 391, 443, 502 n. 47 Dodik, Milorad, 310 Dom Kultura, 247 Donia, Robert, 218–21, 255, 307 Donnelly, Brian, 36 528  I n d e x

Doyle, Colm, 253, 257, 258, 317 draft resistance, 139, 154, 187, 188, 222, 223, 489 n. 6 Draskovic, Vuk, 134, 139, 179, 180, 493 n. 11 Drenica, 19, 25, 36, 41, 46; in 1946, 51, 52 Drewienkiewicz, Karol, 52–54, 59, 60, 62, 64 Drina, 255 Drina Valley, 296 Drnis, 162 Drumbl, Mark, 437, 443 Dubrava prison, 86–89, 420 Dubrovnik, x, 119, 142, 144, 146, 154–56, 182– 87, 206, 252, 398, 402, 431, 489 n. 4 Dulovic, Jovan, 146, 147, 191–93, 409, 490 n. 10 Dutch Battalion, 299, 303–7, 402, 417, 422 Dvor, 200 Elshani, Fehmi, 29 equality of arms, 275, 276, 277, 323, 341 Erdemovic, Drazen, 294–96, 423, 500 n. 21, 501 n. 33 Erdut, 188, 232, 398 Erdut Agreement, 165 Eremija, Milan, 193 Erenik valley, 382 European Community, 254, 266, 326; conference on Yugoslavia, 509 n. 8 European Community Monitoring Mission, 190, 253, 257, 358, 403 European Union, 50, 71, 203, 258; Plan of Action of, 404 evidence: adjudicated facts, 119, 207, 440, 491 n. 19; authenticity of, 359, 360, 422, 494 n. 34; beyond reasonable doubt, 319; burden of proof and, 413, 482 n. 14; coerced, 65, 67; commenting on, 31, 33, 58, 78, 163, 202, 236, 245, 414; circumstantial, 286, 291; coherent view of, 44; created for trial, 237, 363–69, 391; crucial, 275; destruction of, 109; documentary, 119, 166, 174, 176, 179, 193, 270, 271; under duress, 358, 391; exculpatory, 110, 236, 237, 250, 276, 494 n. 33; expert reports, 92, 112; fabricated, 357, 360–62, 391, 392; hearsay, 62, 65–67, 73, 97–98, 331, 332, 357, 360, 371, 390, 391, 407; inadmissible, 62; incriminating, 140, 147, 188, 193, 487–88 n. 7; indicia of reliability, 238, 239; intercepts, 119, 124, 127, 129, 140, 147, 158, 174, 231, 396, 402, 404, 487–88

n. 7, 503 n. 51; irrelevant, 193, 412, 413; judicial notice, 492 n. 4; misrepresented, 32, 33, 37, 40, 41, 77–79, 90, 97, 98, 103–5, 186, 349, 360, 361, 380, 435; paraffin glove test, 64; probative, 360; reasonable doubt, 1, 4, 58, 413, 482 n. 14; rebuttal, 65, 357, 359, 422; recanted statements, 65, 359; recordings, 253; rules of, 238, 239; sufficiency of, 56, 110, 116, 316–21, 423, 431; testimony as, 246; transcripts, 207, 234, 235, 253, 296, 361, 440; unreliable, 67, 70, 145, 190, 237, 358–61, 364, 368; video of an execution, 316, 420–24, 443; video at Potocari, 299, 304, 305; weight of, 238, 317, 360, 391; written, 43, 44, 57, 110, 111, 119, 207, 211, 296, 435, 479 n. 23. See also cross-examination by Milosevic; defense case; witnesses fair trial, 437; appearance of impropriety, 109, 152; confrontation of witnesses, 43, 44, 208, 342, 370, 371, 486 n. 48; duty of court, 33, 151, 152, 239, 328–42, 414, 513 n. 29; equality of arms, 275, 276, 341; expeditious, 207, 248, 249, 325, 328, 334, 341, 342, 434, 435; fundamental interest of ICTY in, 325, 328; obstruction of justice and, 325, 435; presumption of innocence, 442; for prosecution, 45, 357; representation in, 81, 325, 328, 330, 337–44; right of public to, 326, 369; right of silence, 21, 342, 482 n. 14; right of victims to, 326, 369, 491 nn. 21–22; rights of accused, 21, 341, 357, 414, 442, 443 Faretta v. California, 492 n. 22, 506 n. 24 Farkas, Geza, 374, 375 Federal Republic of Yugoslavia. See FRY Field of Blackbirds, 4, 22; battle of, 93, 120, 476 n. 12, 510 n. 17; Milosevic’s speech at, 120, 126 Filipovic, Dragan, 173, 175 Financial Times, 431 Finnish forensics team, 67 First Krajina Corps, 296 Foca, 84 forced labor, 214, 215 Franken, Robert, 303–6 Frenki. See Simatovic, Franko friend of the court. See amicus curiae FRY, 15, 36, 50, 53, 62, 65, 67, 80, 203, 416, 417; Bosnian involvement of, 136, 222, 261, 270, 311, 406, 407, 433; Bosnia’s suit against,

259, 260, 271, 315, 316, 407, 504 n. 72; cooperation of, 178, 181; Croatian involvement of, 136, 166, 433; Defense Ministry of, 362; genocide and, 232, 263, 271–74, 289, 298, 301, 306–9, 315, 316, 337, 402–7, 421–23, 496 n. 2, 502 n. 47, 502 n. 47, 503 n. 49; noncooperation of, 107, 136–38, 180, 270, 271, 315, 316, 369, 443; president of, 269, 275; RS and RSK financed by, 18, 155, 166–68, 176, 216–19, 255–57, 272, 311, 403, 406, 407; RS backed by, 166, 218–24, 256, 257, 265–67, 311, 319, 320, 406, 407; RS embargoed by, 265, 267, 419, 497 n. 31; RSK backed by, 150, 157, 160–63, 166–68, 195, 216, 217, 272, 311, 412, 433; sanctions against, 18, 149, 266, 406, 510 n. 14; Srebrenica and, 271, 274, 308, 316; as successor to SFRY, 403, 405; UN ambassador to, 402, 418; VRS backed by, 18, 133, 166, 218, 219, 255–57, 272, 311, 403, 406, 433, 493 n. 8. See also Belgrade; Serbia; Supreme Defense Council Fulton, Robert, 115, 482 n. 6 Fusa, Rexhep, 358, 359 Gajic, 47 Gajic-Glisic, Dobrila, 139, 168 Galbraith, Peter, 149, 202–6, 215, 237 Galic, Prosecutor v., 248, 252, 253, 496 n. 13 Galic, Stanislav, 437 Gavrilovic, Pavle, 90 Gayre, 378, 509 n. 18 Gazimestan, 93, 120 Geneva Accord, 17, 134, 162, 168, 195–99, 201, 214, 215 Geneva Conventions, 26, 38, 90, 189, 299, 472 n. 9; noncombatants and, 49, 295, 301; proportionality and, 49, 50–53, 69, 372, 410; violations of, 54, 58, 214, 256, 286, 438 genocide, 436–38, 498 n. 1; acquittal judgment and, 316–22; aiding and abetting, 286, 287, 290, 320, 437, 504 n. 74; in Bijeljina, 285, 318, 319; in Bosanski Novi, 285, 318, 319; across Bosnia, 285, 288–90, 318, 431, 432, 440, 500 n. 11, 512 n. 9; against Bosniaks, 180, 214, 215, 258–62, 284–321, 417–24; in Brcko, 285, 318, 319; command responsibility for, 287, 320; complicity in, 214, 265, 284, 287, 289, 290, 320, 321, 407, 498 n. 2, 504 n. 74; conspiracy to commit, I n d e x   529

genocide (continued) 320, 407; Convention on Prevention and Punishment of, 259, 262, 284, 286, 445, 472, n. 9, 496 n. 21; against Croats, 118, 189; in Darfur, 512 n. 14; denial of, 250, 418, 420, 423; foreseeability of, 287, 288, 320; Great Britain and charge of, 444; intent to commit, 215, 285–90, 292, 296, 297, 303, 309, 316–20, 499 nn. 6–7, 504 n. 74; against Jews, 432, 475 n. 6; joint criminal enterprise and, 287, 319, 320; in Kljuc, 285, 318, 319; knowledge of, 287, 290; against Kosovars, 22; against Kurds, 439; law of, 284–91, 316–21, 434, 499 n. 6, 504 n. 74; Milosevic’s responsibility for, 18, 290, 306–22, 417–24, 443, 503 n. 53; motive for, 288; in Prijedor, 285, 318, 319; against Roma, 432, 475 n. 6; in Rwanda, 472 n. 6; in Sanski Most, 285, 318, 319; against Serbs, 15, 24, 145, 292, 326, 346, 350, 355, 391, 394, 396, 432, 475 n. 6; sociology of, 291, 292; United States and charge of, 444, 500 n. 22. See also BosniaHerzegovina v. FRY/Serbia and Montenegro; Milosevic, Slobodan: knowledge of Srebrenica genocide; Srebrenica genocide Germany, 2, 12, 28, 76, 407, 433 Gerxhaliu family, 32 Ghadafi, Moammar, 480 n. 3 Gjogaj, Ali, 98, 115 Gligorov, Kiro, 35, 51, 475 n. 5 Glina, 176 Glogova, 224, 226, 228 Gnjilane, 378 Golubic, 155, 160, 175 Golubovic, Caslav, 101 Gorazde, x, 251, 256, 257, 263–66, 269, 304, 312, 406, 407, 503 n. 51 Gore, Al, 444 Gospic, 187 Gotovina, Ante, 472 n. 11 Gracanin, Petar, 396 Gradisce, 125 Great Britain, 12, 39, 444 Greater Serbia, 126, 158, 219, 224, 261, 319, 345, 350, 354, 355, 394. See also plans: to enlarge Serbia Groome, Dermot, 12, 173–79, 197, 200, 201, 223, 264, 265, 436, 500 n. 20 Group of Six, 135, 136, 401 Guantánamo Bay, 448 530  I n d e x

Guardian, 250 Guards Brigade, 76 Gusalic, Alija, 242, 243, 246 Gutman, Roy, 250, 495 n. 1 Hadic, 47 Hadzic, Goran, 165, 195 Hague Conference, 402 Hague Tribunal. See International Criminal Tribunal for the former Yugoslavia Haradinaj, Ramush, 383, 509 n. 20 Harland, David, 42, 254–57, 307, 309, 312, 419 Hartmann, Florence, 473 n. 14, 488–89 n. 17, 500 n. 22, 514 n. 40; contempt of court, 502–3 n. 48 Hartwig, Dietmar, 358 Hasanaj Dolina, 364 Haxhiavdija, Ismet, 482 n. 10, 508 n. 9, 512 n. 11 Haxhiu, Baton, 46, 47, 477–78 n. 5 Hazan, Pierre, 445, 446, 514 n. 43 HDZ, 121, 155, 394 Helsinki Final Act, 72 Hendrie, Ian, 60, 480 n. 31 Herzeg-Bosna, 497 n. 28 Higgins, Gillian, 329, 330, 337–41, 370, 424, 429, 434, 436 Hill, Christopher, 71, 444 historic sites: Bosnian, 215, 234, 494 n. 31; Croatian, 182–94; Kosovar, 21, 26, 29, 48, 92–94, 112, 318; Serb, 94, 347, 377; UNESCO, 142, 182–87, 398 Hitler, Adolf, 1, 291, 326, 361, 391, 396, 433, 445, 446 Hocevar (General), 127 Holbrooke, Richard, 19, 25, 70, 202, 205, 311, 313, 473 n. 13, 503 n. 51 Holocaust, 291, 432, 498 n. 1 hostages, 256, 304, 406 Hoxha, Hani, 508 n. 9 human rights, 41, 42, 114 human rights activists, 80 Human Rights Watch, 32, 41, 42, 58, 114, 155, 385, 432, 433, 435, 440, 474 n. 25, 476 n. 13 Hunt, David, 45 Hussein, Saddam, 8, 439, 441, 446, 512 n. 14 Hutsch, Franz-Josef, 336, 337 Ibraj, Muharem, 377 ICRC, 242, 243, 308, 419

ICTY Association of Defense Counsel, 340 Ilic, Aca, 244 immunity deal, 3, 473 nn. 13–14, 498 n. 37 indictment, 476 n. 1; for Bosnia, 3, 214, 215, 284, 285, 320, 392, 474 n. 19; command responsibility in, 6; for Croatia, 3, 117, 118, 186, 320, 392–95, 472 n. 12, 474 n. 19; factual allegations in, 253, 320, 364, 414; individual responsibility, 14, 27, 112, 113, 118; joinder of, 6, 439, 440, 474 n. 21, 513 n. 27; for Kosova, 26, 111, 119, 321, 349, 392, 474 n. 19; of Milosevic, ix, 3, 6, 92, 207, 210, 345, 409, 413, 416, 439, 471 n.1. See also charges and counts; genocide inquisitorial criminal law system, 56, 207, 209, 297, 325, 360, 488 n. 14 insiders, 56, 75–77, 103, 105, 107, 111, 117, 119, 129–36, 151–67, 269–75, 297–302, 393–423 intent, 119, 291; genocidal. 215, 285–90, 292, 296, 297, 303, 309, 316–20, 499 nn. 6–7, 504 n. 74 intercepts, 119, 124, 127, 129, 140, 147, 158, 174, 231, 396, 402, 404, 487–88 n. 7, 503 n. 51 interlocutory appeal, 137, 485 n. 33 internally displaced persons, 37, 39, 112, 379 International Committee for the Defense of Slobodan Milosevic, 276, 337 International Committee of the Red Cross, 242, 243, 308, 419 International Conference for the former Yugoslavia, 266 International Court of Justice: Bosnia case in, 58, 180, 259, 271, 285, 288–90, 315, 316, 407, 443, 444, 489 n. 21, 496 n. 21, 502 n. 47, 504 n. 72; FRY v. NATO in, 476 n. 13 International Criminal Court, 3, 208, 442–48, 491 n. 21, 512 n. 14, 513 n. 35, 514 n. 35; China and, 445, 448 International Criminal Tribunal for Rwanda, 3, 209, 434, 474 n. 24 International Criminal Tribunal for the former Yugoslavia, 61, 109, 110, 288, 362, 432, 433; bias of, 441; as deterrent, 102, 103, 106, 107, 116, 310, 364, 472 n. 8; end date of, 297; establishment of, 2, 473 n. 17; failure of, 431, 436; integrity of, 342, 367, 445; investigation by, 62, 67, 425–29, 441, 445; law of, 83, 238, 296, 297, 341–44, 352, 427–29; legitimacy of, 7, 21, 34, 151, 323, 325, 343, 344, 355, 367, 475–76 n. 11, 505 n. 6; pur-

pose of, 437, 438, 446; Registry office of, 410; Serb response to, 118; statute of, 26, 44, 57, 112, 114, 115, 136, 214, 237, 284, 286, 341, 342, 451–55 international humanitarian law, 14, 27, 38, 48, 112; violations of, 26, 54, 155, 251, 327 International Military Tribunal for the Far East, 2, 471 n. 5 Iran, 205, 332 Iraq war, 448 Islam, 23, 24, 332, 377; radical fundamentalism, 291, 317, 327, 332 ITN, 250 Ivaja, 378, 509 n. 18 Ivashov, Leonid Gregorovich Ivashov, 355 Izbica, 108 Izetbegovic, Alija, 24, 129, 213, 237, 263, 268, 332 Izvor, 216 Jackson, Robert, 447 Jajce, 406 Janicevic, Bogoljub, 63, 66, 67, 378, 381, 479 n. 22 Jankovic (general), 223 Jarcevic, Slobodan, 393, 395, 396 Jashari, Adem, 19; family of, 25, 41, 51 Jasovic, Dragan, 64, 65, 67, 70, 378 JATD, 139, 155, 170, 222, 226, 227, 233, 244, 256, 275, 489 n. 20; Srebrenica and, 301; video of, 140, 174–79, 415, 416 Jatras, James, 332, 333 Jelic, Krsman, 61, 381, 382 Jelisic, Goran, 499 n. 6, 512 n. 9 Jemini, Agim, 376, 508 n. 10 Jemini, Isuf, 508 n. 10 JNA, 16, 24, 132; appeal for protection to, 223; Arkan and, 188, 189; blockade of, 196, 197, 404; in Bosnia, 213, 216, 217, 221–23, 226– 28, 247, 253, 318; Bosnian Serbs backed by, 133, 244, 318; in chain of command, 160; chief of staff of, 123, 396; command responsibility in, 193; counterintelligence of, 121, 148, 149, 153, 158, 184, 185, 193, 194, 482 n. 2; Croatian Serbs backed by, 148, 199, 396–99; Dalmatian campaign by, 182–87, 398; demonstrations and, 123, 172, 398, 510 n. 9; desertion from, 154, 187, 188, 192, 223, 411; disproportionate force by, 196, 197; forces in Croatia and, 148, 155, 160, I n d e x   531

JNA (continued) 165, 172, 173; generals purged from, 121, 122, 131, 134, 149, 153, 154, 273, 482–83 n. 2; intervention by, 17, 122, 124, 161, 162, 168, 169, 225, 226, 244, 351, 394, 396, 483 n. 8; Milosevic’s control of, 118–21, 126, 130, 131, 138, 148, 149, 153, 154, 160, 169, 170, 217, 246, 256, 273, 397, 398, 482–83 nn. 2–4; Montenegrin troops and, 139, 142, 144, 182, 184; non-Serbs disarmed by, 228, 247, 412; Novi Sad battalion of, 188, 247; officers in ARSK, 148, 153, 163, 164, 168, 398; officers paid by Serbia/FRY, 148, 164, 165, 167, 216, 272; officers in VRS, 153, 216, 222, 256, 272, 296, 484 n. 23; Ovcara and, 156, 166, 189–93, 196, 197; paramilitaries and, 155, 156, 172–75, 188, 189, 192, 193, 244, 410, 411; preservation of SFRY and, 121, 126, 127, 135, 136, 148, 149, 184, 482–83 n. 2; propaganda by, 149, 185–88, 193, 482 n. 2; Serbianization of, 121, 135, 165, 168, 184, 187, 192, 214, 397, 398, 482–83 n. 2, 483 n. 4; Serbs and, 213, 216; Serbs armed by, 122, 133, 148, 152, 153, 162, 184, 197, 205, 213, 215, 221, 228, 399, 412; SFRY presidency and, 123, 124, 399, 400; siege warfare of, 142, 182–92, 196, 256; Supreme Command by, 123, 124, 399–401; territorial defenses disarmed by, 127, 213, 228; transformation of, 216, 405, 493 n. 9; Vojna Linija, 153; VRS creation and, 133, 214, 216, 222; VRS supplied by, 216, 218, 221, 253; withdrawal of, 215, 216, 244, 253, 331; See also draft resistance joinder of indictments, 6, 439, 440, 474 n. 21, 513 n. 27 Joint Command, 47, 49, 66, 76, 113, 114, 372– 75, 392; orders of, 48, 67, 374 joint criminal enterprise, 4, 6, 17, 26, 27, 107, 111, 113, 118, 126, 129, 130, 135, 167, 214, 224, 284, 319, 326, 352, 413, 431, 439, 440, 474 n. 18; members of, 154, 157, 164, 408, 409, 474 n. 19 Jokanovic, Vukasin, 348–50 Jorda, Judge Claude, 45 Jovanovic, Vladislav, 194, 402–7, 417–20 Jovic, Borisav, 122, 124, 129–36, 145, 154, 156, 509 n. 2; diary of, 197, 397, 401 Jovic, Mirko, 139 JSO, 139, 155, 170, 222, 226, 227, 233, 244, 256,

532  I n d e x

275, 489 n. 20; Srebrenica and, 301; video of, 140, 174–79, 415, 416 JUL, 181 Junik, 382 Juppé, Alain, 503 n. 51 K-2, 170, 171 K-12, 105, 106 K-14, 85, 86 K-20, 83 K-31, 83, 84 K-32, 89, 90, 91 K-41, 90, 91, 432 Kacanik, 375, 378–80, 509 n. 18 Kadijevic, Veljko, 121, 123, 131, 153–55, 160, 163, 169, 185, 186, 195–97, 397–99, 401, 402, 404 Kadriu, Sabit, 32, 33 Kalinic, Dragan, 317 Kameni’s unit, 192 Kandic, Natasa, 422, 502 n. 47 Kanelli, Liana, 337 Karadjordjevo meeting, 124, 125, 162, 212, 224 Karadzic, Radovan, 218, 224, 228, 253, 255, 258, 288, 289, 297, 406, 419; admissions by, 222, 252, 306, 310, 311, 487–88 n. 7; arrest of, 320, 432, 444, 473 n. 14; attack on Srebrenica ordered by, 219, 296, 298; genocide and, 316, 317, 432; indictment of, 3, 205, 285, 331, 432, 472 n. 10; Milosevic and, 124, 127, 129, 149, 157, 262, 404; orders by, 295, 298; plan for war of, 402; as president of RS, 298; as SDS head, 17, 214; speech to RS Assembly by, 252, 303, 307, 316, 317; Srebrenica and, 298–303, 307–10; trial of, 290; Vance-Owen plan opposed by, 266 Karleusa, Dragan, 102, 106 Karlobeg, 183 Karremans, Ton, 305 Kay, Stephen, 11, 208, 276, 278, 292, 324, 329– 36, 369, 370, 395, 422–25, 429, 434, 436, 492 n. 24; ethical dilemma of, 330, 337–41 Kelly, Barney, 477 n. 9 Kelmendi, Bajram, 80 Kenney, George, 334 Keraterm camp, 249, 318, 437, 499 n. 6 Kertes, Mihail, 416, 488 n. 13 Kijevo, 396, 397 Kirudja, Charles, 198–201, 249, 250

Kish, Kevin, 84 Kissinger, Henry, 73 KLA. See Kosova Liberation Army Kladanj, 304 Kladovo, 99, 101 Kladusa, 125 Kljuc, 214, 285, 318, 414 Kljuic, Stjepan, 212, 213, 218, 254 Knin, 122, 149, 159, 160, 201, 410, 431 KOG, 121, 148, 149, 153, 158, 184, 185, 193, 194, 482 n. 2 Koha Ditore, 46, 477–78 n. 5 Kohl, Helmut, 76, 480 nn. 3–5, 481 n. 5 Konavle, 183, 184 Konjevic, Polje, 227 Korenica, 382–84 Koritnik, 234 KOS, 121, 148, 149, 153, 158, 184, 185, 193, 194, 482 n. 2 Kosova: assembly of, 348, 349, 352; autonomous status of, 15, 16, 120, 346, 347, 352– 54, 400, 405, 486 n. 43; Dayton and, 18, 50; final status agreement and, 480 n. 34; imminent threat of war in, 482 n. 11; independence of, 73, 81, 481 n. 7; opposition to Milosevic over, 47–49, 61, 75, 273, 409, 478 n. 6, 480–81 nn. 3–5; parallel state of, 79, 371, 372; pivotal role of, 16, 20, 47, 70, 203, 348, 371, 372; Serbia’s campaign against, 21, 29, 30, 48, 53, 70, 71, 89, 92, 346, 431; Serbia’s loss of, 72–77; Serbia’s withdrawal from, 409; Serbs’ status in, 347, 348, 370– 72; as spiritual heartland of Serbia, 348 Kosova Liberation Army, 18, 26, 30, 32, 36, 37, 53, 60, 64–69, 85, 383–86, 389; arming of, 505 n. 9; creation of, 46, 477 n. 2; faking humanitarian disaster, 378, 379, 391; first public appearance of, 19, 46; flight caused by, 86, 92, 327, 336, 360, 376, 377, 391; growth of, 47, 376; nature of, 54; negotiations with, 71; October 1998 agreement and, 52; police attacked by, 19, 28; property damage caused by, 327, 359, 376, 377; Serbian campaign against, 48–51, 112, 113, 355, 378, 381 Kosovar Albanians, 49, 71, 74, 315, 326, 327, 336, 346–48, 358; demonstrations by, 15, 16, 46, 64, 348; discrimination against, 46, 47, 50, 371, 372; identity documents of, 28, 29,

60, 112; killed leaders of, 80, 115; as refugees and IDPs, 20, 21, 28–30, 35–41, 112, 114, 356–59, 376, 384, 385, 389, 390, 391; resistance by, 18, 46, 47, 64, 79, 376, 475 n. 8, 507 n. 3; as secessionists, 348, 349, 351; violence against, x, 15, 20, 21, 25–31, 35–39, 41, 46, 47, 51, 58–70, 77, 80–91, 95–101, 105, 111, 112, 359, 372, 376–92, 479 n. 26 Kosovo Polje, 4, 22; battle of, 93, 120, 476 n. 12, 510 n. 17; Milosevic’s speech at, 120, 126 Kosovo Serbs, 15, 16, 346–48, 363, 371, 372 Kosovo Verification Mission, 52–55, 60, 67, 71, 95, 112, 114, 362, 379, 509 n. 18 Kostic, Branko, 124, 131, 132, 135, 154, 393– 402, 509 n. 7 Kostic, Jugoslav, 509 n. 7 Kostunica, Vojislav, 3, 180, 488 n. 13, 497 n. 33 Kotlina, 378–81 Kotor Varos, 214, 414, 498 n. 3 Kotur, Milan, 53, 54, 382–85 Kovacevic, Vladimir, 498 n. 42 KP Dom, 247 Krajisnik, Momcilo, 219, 288, 289, 313, 317, 436, 498 n. 3; Srebrenica and, 298, 309, 499 n. 6, 512 n. 9 Krasniqi, Marjan, 97, 98 Krasniqi, Musa, 87 Kravica warehouse, 300, 302, 501 n. 27 Kristan, Ivan, 141, 486 n. 43 Kriste, Petar, 185 Kriva Sesta, 245 Krstic, Radislav, 168, 284–87, 290, 302, 306, 320 Kucan, Milan, 126, 127 Kukes, 28 Kula, 170 Kum, 189 Kunarac, Kovac and Vukovic, Prosecutor v., 84 Kwon, O-Gon, 11, 40, 63, 67, 88, 323, 335, 349, 360, 388, 389, 394; in dissent, 106, 320 Landovica, 31 laws and customs of war. See Geneva Conventions; international humanitarian law Lazarevic, Slobodan, 148–53, 159, 162, 232 LDK, 47, 79, 80, 376 League of Communists of Serbia, 15, 16, 181, 350

I n d e x   533

League of Communists of Yugoslavia, 120, 346, 354; Milosevic’s speech to, 126; Slovenia and, 127 Lecic, Milan, 63 Legal assistants and associates, 10, 22, 42, 86, 333–35, 414, 441 Legija, 217, 231, 422, 489 n. 20, 493 n. 11 Lemkin, Raphael, 284 Likoshan massacre, 46 Lilic, Zoran, 47, 61, 75, 77, 105, 136, 138, 150, 181, 221, 269–75, 480–81 nn. 3–5, 497 n. 32 Lituchy, Barry, 360, 361 Ljubljana, 400 Log revolution, 122, 149, 159, 410 Loku, Hasbi, 378, 380 Loncar, Budimir, 129 Loncar, Dusko, 59, 231 Lovas, 166, 193 Luban, David, 289 Luka camp, 499 n. 6 Lukavica barracks, 256, 318 Lukic, Milan, 235 Lukic, Sredoje, 235 Luzani, 359 MacCarrick, Gwyn, 431 Macedonia, ix, 16, 51, 85, 129, 143, 359, 378, 400, 475 n. 5; refugees in, 20, 29, 35, 86, 112, 114, 356, 357, 361, 380, 389 Macedonia Emergency Medical Team, 356, 357 Maisonneuve, Jozef, 60, 61 Mala Krusa, 376 Malesevic, Mileka, 240–42 Manjaca camp, 245, 249 Marinkovic, Danica, 63–70 Marinovic, Nojko, 183–86 Markale marketplace massacre, 248, 418 Markovic, Ante, 127, 212, 213 Markovic, Mihajlo, 345–47 Markovic, Mirjana (“Mira”), 180, 181, 210, 430 Markovic, Radomir (Rade), 42, 102–5, 108, 113–15, 180 Markovic, Ratko, 73, 74, 351 Marshal, Penny, 250 Martic, Milan, 159–64, 168, 172, 175, 201–4, 396, 398, 411, 425, 483 n. 8; Zagreb shelled by, 396 Mass graves, 18, 20, 29, 190, 297, 305; exhu534  I n d e x

mation of, 21, 26, 98, 108, 109, 115, 272, 382, 420 Matton, Sylvie, 473 n. 14, 503 n. 51 Mauser, 233, 494 n. 30 May, Richard, 11, 28, 85, 145, 237, 275, 276, 312; amici and, 208, 247, 278; demands on, 110, 278, 436; expertise of, 324; illness and death of, 322, 323, 436; instructions by, 21, 49, 54, 83, 97, 105, 106, 190, 243, 249; intervention by, 39, 104, 110, 125, 126, 146, 163, 169, 191, 230, 245–48, 256, 379–81, 513 n. 29; rebuke by, 31, 33, 55, 56, 229, 234; warning by, 34, 90, 274, 278 Mece, 90 media, 31, 62, 67, 69, 82, 83, 109, 117, 254, 260, 261, 435, 441, 443; camps and, 243, 250; as propaganda tool, 14, 118, 131, 142, 149, 159, 191; Serbian, 41, 77, 79, 86, 87, 101, 118, 127– 29, 142, 146, 156, 158, 190, 191, 304, 399, 477 n. 5; Srebrenica and, 300, 304, 310 Medic, Slobodan, 422 Meja, 376, 382–84 mens rea, 27 Merina, Halil, 31 Meron, Theodor, 322, 323, 410 Merovci, Adnan, 77, 78, 115 Mesic, Stjepan, 120–26, 128, 144, 149, 153, 160, 399, 400, 498 n. 4 Micunovic, Aleksandar, 383 Micunovic, Nikola, 382 Mihajlovic, Kosta, 345, 347 Mijatovic, Jovo, 222 Mijovic, Vaso, 232 Milanovic, Milan, 164–67, 202, 206, 218, 222 Military Medical Academy, Belgrade, 428 Milosevic, Dragomir, 437, 496 n. 13 Milosevic, Marija (daughter), 430 Milosevic, Marko (son), 180, 430 Milosevic, Slobodan: access to information of, 129, 276, 362–69; admission by, 48, 72, 73, 91, 103, 134, 135, 156, 166, 167, 195, 197, 218, 221, 233, 255, 271, 303, 313, 327, 355, 356; arrest of, 3, 4, 101, 107, 166, 218, 471 n.1, 488 n. 13; ARSK and, 157, 159, 160, 163, 164, 196, 272, 315; Assembly of Serbia and, 400; banks and, 16, 128, 163, 417; attitude of, x, 7, 12, 21, 151, 333, 392, 428; betrayal by, 131, 149, 150, 162, 196, 201, 202–5, 371, 403, 490 n. 13; Bosnian Serbs in Gorazde restrained by, 256, 257, 264, 265, 269,

312, 406, 407; Bosnian Serbs in Sarajevo restrained by, 256, 257, 406, 496 n. 16; Bosnian Serbs in Srebrenica restrained by (1993), 267, 269, 306, 307, 312, 406, 407, 496 n. 16; as commander in chief of VJ, 61, 91, 113, 114, 374; command responsibility of, 39, 41, 48, 61, 91, 114, 115, 214, 346, 490 n. 12; complicity in genocide of, 320, 321; counterintelligence controlled by, 149; crimes linked to, 15, 17, 25, 27, 34, 38–42, 69, 75, 77, 80, 103, 107, 113–15, 120, 126, 136, 139, 140, 157, 161, 164, 167, 193, 194, 197, 218, 219, 228, 246, 255, 259, 260, 265, 269, 290, 307, 319, 412, 417, 490 n. 12, 493 n. 12; Croatian Serb police and, 159, 196; cruelty of, 142, 146, 234, 313, 380, 381; Dayton and, 256, 270, 271; death of, 7, 27, 208, 278, 290, 343, 426–33, 441; de facto command responsibility of, 61, 66, 72, 107, 113, 119, 154, 159, 160, 163, 164, 172, 217, 273, 320, 401, 478 n. 8, 482 n. 11, 485 n. 37; defense counsel and, 322–33, 335, 337, 366, 414, 415; de jure command responsibility of, 66, 107, 113, 138–41, 160, 217, 320, 327, 374, 375, 401, 485 n. 37; end of SFRY declared by, 399; genocide responsibility of, 18, 290, 306–22, 417–24, 443, 503 n. 53; health of, 82, 328, 334, 335, 338, 342, 414, 425; health and fitness to stand trial of, 324, 325; health manipulated by, 42, 98, 208, 278, 322, 328, 329, 342, 392, 426–29, 439, 441; immunity deal and, 473 n. 13; intent of, 39, 290, 319, 320; JNA and, 130, 131, 136, 138, 148, 149, 153–57, 160, 164, 169, 170, 195, 196, 214, 217, 246, 256, 320, 397, 401, 412, 483–84 n. 2, 510 n. 9; judiciary and, 130; at Karadjordjevo meeting, 124, 125, 162, 212, 224; Karadzic and, 124, 127, 129, 157, 158, 265, 419, 487–88 n. 7; as key to settlement, 203, 266; Kosova war advantageous to, 19; lack of legal competence of, 39, 40, 49, 62, 65, 66, 70, 109, 110, 125, 146, 191, 193, 229, 232, 243, 245, 248, 268, 314, 343, 350, 361, 362, 377, 381, 386, 390–95, 412–14, 420, 435, 439; manipulation by, xi, 40, 41, 63, 103, 105, 138, 248, 249, 359–62, 366, 390–92, 420, 425, 435, 439, 441, 484 n. 17; media and, 16, 131, 395; medical reports on, 81, 82, 277, 278, 324, 325, 328, 426–28; Ministry of the Interior and, 217, 320, 485 n. 37; Mira

and, 180, 181; misrepresentation by, 32, 33, 37, 40, 41, 77–79, 90, 97, 98, 103–5, 186, 349, 360, 380, 435; Mladic and, 256, 262, 265, 267, 306–8, 312, 337, 349, 406, 407, 419, 502 n. 37; money illegally transferred by, 128, 488 n. 13; Montenegro and, 146; motivation of, 13, 33, 47, 69–71, 82, 110, 151, 203, 314, 341, 424, 440; myth of, xi, 7, 11, 23, 33, 42, 151, 180, 424, 430; negotiations and, 3, 71, 158, 162, 165, 194–206, 256, 265, 266–71, 311, 313, 320, 394, 396, 401, 510 n. 11; obstruction by, 57, 66, 79, 110, 343, 357–62, 435; opening statements by, 21, 118, 120, 326, 327, 333, 338, 346; opposition to, ix, 3, 14, 18, 47, 75, 76, 113, 123, 149, 172, 181, 270–73, 373, 398, 431, 473 n. 15, 478 n. 7, 510 n. 9; paramilitaries and, 172, 174, 178, 195–98, 320, 337, 409, 411; Party and, 130, 131, 148, 217, 416; peacemaking by, 24, 119, 131, 194–98, 201, 206, 256, 261, 265–71, 311– 14, 394, 401, 404; provisional release of, 275, 425–27; RDB and, 231; Red Berets and, 275, 315; RS and, 166, 219, 223, 307, 409; RS finances and, 266, 320, 406; RSK and, 195, 196, 201–6, 396, 412, 415, 510 n. 11; SDB and, 148, 230, 231, 273, 320; Serbian companies and, 16; Serb victims of, 13, 18, 263, 391; SFRY assembly and, 128; SFRY budget and, 128; SFRY presidency and, 16, 122, 136, 146, 160, 217, 320, 399–401; special privileges of, 276–77, 329, 426, 427, 429; speech to CP Central Committee by, 126; speech at Kosovo Polje by, 120, 126; speech to Kosovo Serbs by (1987), 16; speech to RS Assembly by, 219–21, 266; speech to Serbian Parliament by, 126; Srebrenica and (1993), 256, 260, 267–72, 294, 298, 306–21, 417–24; Srebrenica genocide linked to, 24, 262, 272, 298, 306, 307, 309, 312, 319, 320, 419, 501–2 n. 37; trial interrupted by illness of, 42, 57, 81, 110, 151, 157, 180, 207–11, 247, 260, 277, 278, 296, 322, 324, 328, 370, 392, 429, 439; Tudjman and, 124, 125, 212, 213, 497 n. 28; VJ and, 217, 270, 273–75, 374, 375; VRS and, 256, 257, 263, 265, 267, 269, 272, 406; war in Bosnia backed by, 219, 221, 223, 255–57, 319, 407, 433; war in Bosnia sought by, 129, 195, 212, 213; war in Croatia backed by, 120, 153, 157, 166, 167, 433; war in Croatia sought by, 125, 126, 143, 149, I n d e x   535

Milosevic, Slobodan (continued) 157; war in Kosova sought by, 18, 19, 59, 70, 71, 74, 76, 475 n. 10, 475 n. 10, 480 n. 3, 480 n. 5; witnesses influenced by, 103–5, 107, 109, 111, 130, 133, 134, 169, 170, 175–79, 269–75, 366, 388, 390–92; worldview of, x, xi, 22, 23, 33, 57, 63, 82, 273, 372, 373, 390. See also defense case; Joint Command; self-representation Milutinovic, Milan, 61, 71–73, 76, 79, 80, 373, 478 n. 8, 481 n. 7 Ministry of Defense: federal, 122, 153, 168, 169, 363; Serbian, 122, 155, 167 Ministry of Interior, Serbia (MUP), 29, 37, 59, 105, 122, 361; Arkan and, 139, 155, 156, 230; in Bosnia, 140, 146, 147, 217, 233, 234, 297, 421; cooperation with VJ of, 372, 381; in Croatia, 118, 139, 140, 146, 147, 159–61, 164–66, 170–75; disciplinary action by, 115; Erdemovic’s arrest and, 303; favoritism toward JNA/VJ of, 49, 139, 169, 170, 272, 273; federal MUP and, 485–86 n. 41; Joint Command and, 48, 76, 375; in Kosova, 19, 48, 51–54, 59, 60–70, 75, 80, 93, 359, 364, 376, 379; militarization of, 49, 138, 272, 275, 485 n. 36, 486 n. 42; as Milosevic’s private army, 49, 138–40; paramilitaries and, 336, 412; in Racak, 62, 64, 65–67; outside Serbia, 138, 139; Skorpions and, 421; special antiterrorist unit of, 51, 53, 80, 88, 89, 155, 165, 167, 275, 376, 382, 384, 387, 388; Srebrenica involvement of, 272, 301, 309, 310, 421; subordination to VJ of, 61, 77, 113, 373, 375, 482 n. 11; VJ and, 48, 60–67, 75, 76, 95–97, 384–89. See also Public Security Division, Serbia; State Security Service, Serbia Mladic, Ratko, 152, 218, 221, 222, 227, 228, 232, 252, 254–56, 262–64, 267, 396–97, 436, 444; as commander of VRS, 406; French pilots and, 274, 498 n. 37; genocide and, 289, 290, 307; immunity for, 498 n. 37; indictment of, 3, 285, 288, 331, 472 n. 10, 478 n. 7; Milosevic and, 308, 311–13, 337, 419, 502 n. 37; Milosevic’s power over, 256, 262, 306, 307, 312, 405, 407; as scapegoat, 503 n. 50; Srebrenica genocide and, 268, 274, 299, 300–306, 309–12, 419, 422, 432, 502 n. 37, 503 n. 51 mobilization, 123, 139, 154, 187, 232, 399 536  I n d e x

Montenegro, ix, x, 89, 120, 122, 132–35, 145, 184, 270, 393, 397, 401, 405, 432; apology to Croatia by, 144, 486 n. 47; bombing of, 69; Croatian independence recognized by, 142, 486 n. 45; Dalmatia attacked by, 182, 183, Serbia and, 213, 224, 325, 400 Morillon, Philippe, 42, 227, 258, 262, 263, 268, 312, 496 n. 16 Morris, Morgan, 37, 38 Moscow, 341, 392, 425–27, 430 Mostar, x, 183 motive, 288, 296 MPRI, 336 Mrksic, Mile, 217, 437, 490 n. 9, 493 n. 11 Mujahideen, 24, 336, 492 n. 3 Mujota, Hanumshahe, 63 Museum of the Prizren League, 93 Music, Mehmed, 256 Muslim-Croat Federation of Bosnia, 264, 404 Muslims: Bosnian, x, 133, 200, 212, 214, 221– 28, 232, 234, 237, 262, 291, 326, 406, 407, 437, 496 n. 18; fundamentalism among, 23, 291, 317, 327; genocide of, 284–321, 437; Kosovar, 61, 327 Nambiar, Satish, 249, 250 National Bank of Serbia, 128 National Bank of Yugoslavia, 128, 163 Nationalism, 11, 13, Croat, 16, 158, 169, 394; Kosovar, 93; Serb, 15, 16, 47, 149, 164, 184, 219, 347, 391, 403, 408, 411 NATO, ix, 20–22, 106, 113, 361; accusations against, 23, 32, 39, 58, 66, 68, 108, 326, 337, 350, 354, 359, 377, 380, 420, 444, 476 n. 13; admissions by, 337, 346; alleged flight from, 59, 77, 78, 86, 92, 354, 357–59, 372, 376; attacks against, 113; attacks under cover of bombing, 87–89, 93, 94, 376, 478 n. 6; bombing denied by, 30, 31; Bosnia air strikes by, 256, 264, 268, 304, 313, 336; case against, 355; ceasefire agreement and, 409; commander of, 327; Dubrava prison and, 87–89, 420; Kosova bombed by, 28, 53–55, 69, 72, 76–80, 87–89, 93, 99, 112, 114, 327, 336, 337, 346, 354, 359, 376, 380–84, 389, 390, 425; Kosova intervention by, 39, 72, 314, 315; legal defenses and, 23, 58, 93, 112, 327, 346, 354–60, 372, 376, 377, 380, 381, 390, 391, 444; October 1998 agreement and, 19, 51–54, 59, 69, 71; secretary general

of, 314, 355; United States government and, 50, 58, 425, 444 Naumann, Klaus, 42, 51, 52, 69, 70, 112, 113, 478 n. 9 Neier, Aryeh, 433, 438 Neretva River, 402 Nevesinje, 214 Newsday, 240, 250 New World Order, 82, 326 New York Times, 323, 334, 502 n. 47 Nice, Geoffrey, 12, 25, 36, 40, 44, 55, 56, 63– 69, 74, 77, 86, 88, 97, 103–6, 109, 133, 152, 156, 171, 186, 232, 236, 237, 241, 253, 272, 278, 297, 303–7, 313, 383, 403–9, 436, 514 n. 40; on appointment of defense counsel, 82, 276, 324, 339, 340; arguments to court by, 136–38, 164, 248, 249, 271, 276, 277, 324, 362, 363, 390, 392; cross-examination by, 331, 332, 347–51, 355–71, 373, 375, 376, 381, 384–86, 389, 390, 410–21; cross-over witnesses, 269–75; danger predicted by, 146, 147; Del Ponte criticized by, 315, 316; Hartmann’s accusation against, 500 n. 22; Hartmann’s disagreement with, 488–89 n. 17; opening statements by, 14–20, 117– 20; trial court’s reprimand of, 367–69 Nikolic, Momir, 302, 499 n. 7 Nikovic, Spiro, 199 Nis, Serbia, 87, 227 Nogovac, 389 Non-Aligned Movement, 259 North Atlantic Treaty Organization. See NATO Novi Sad, 188, 192, 247 Nuremberg Trials, 1, 2, 433, 446, 447, 471 n. 2, 472 n. 5, 498 n. 1 Obrenovic, Dragan, 499 n. 7 October 1998 Agreement, 19, 51–54, 59; refusal to comply with, 69; violation of, 53, 71 Odak, Zlatko, 364, 377 Ogata, Sadako, 259 Ojdanic, Dragoljub, 48, 374, 478 n. 7 Okucani, 187 Okun, Herbert, 194–97 Omarska Camp, 249, 250, 318, 337, 499 n. 6 157 Milos Gilic Street, 377 Operation Breakthrough, 152 Operation Flash, 149, 201, 203, 298, 302, 497 n. 28, 501 n. 25; United States and, 202

Operation Horseshoe, 376, 508 n. 14 Operation Labrador, 149 Operation Opera, 149 Operation Pancir, 217 Operation Storm, 149, 150, 162, 201–5, 232, 310, 472 n. 11, 490 n. 16, 497 n. 28; indictments for, 490–91 n. 17, 509 n. 1 Orahovac, 297, 375, 385, 387 orders: Directive Seven, 296; by JNA, 168; by Karadzic, 295, 296; by Milosevic, 178; by MUP, 89; prohibiting crimes, 24, 295, 301; of RS MUP, 309; of VJ, 71; of VRS, 295 Organization for Security and Cooperation in Europe, 52, 62, 64, 67, 68, 114, 362, 379, 381, 383, 395, 509 n. 18 Oric, Naser, 225, 226, 262, 494 n. 25 OSCE, 52, 62, 64, 67, 68, 114, 362, 379, 381, 383, 395, 509 n. 18 Osmanovic, Ibro, 247 OTPOR, 511 n. 1 Ovcara massacre, 15, 166, 187–97, 493 n. 11. See also Vukovar massacre Owen, David, 260, 261, 266–69, 306, 312, 420 Owen-Stoltenberg plan, 404 Pakrac, 123, 161, 184, 488 n. 9 Pale, 226, 252, 266–68, 272, 298, 301, 419. See also Bosnian Serbs: leadership of; Republika Srpska: leadership of Pandurovic, Vinko, 500 n. 23 Panic, Milan, 131, 406 Panic, Zivota, 139 Panthers, 233, 494 n. 30 Paponjak, Radovan, 87, 88 paraffin glove test, 64 paramilitaries, 15, 17, 30, 42, 53, 87, 93, 111, 113, 140, 154, 276; in Bosnia, 194, 217, 222–27, 230–34, 242, 244, 318, 421; in Croatia, 123, 132, 159, 160, 172–75, 187–97, 231; JNA control of, 155, 156, 193, 374; in Kosova, 96–98, 336, 337, 372, 374, 382; liquidation lists of, 223; in massacres, 147, 192, 193, 421; Montenegro and, 145; MUP control of, 173, 227, 230, 421; Muslim, 132; order banning, 374; paratroop brigade, 227; police as, 336; Serbian, 155, 156, 172, 192, 195, 222–27; Serbia’s payments to, 227; Serbia’s supplying of, 227, 409 Paris, Erna, 446 I n d e x   537

Paris peace talks, 41, 71, 72 Parker, Kevin, 427–29 Party for Democratic Action, 213, 229, 244 Pasic, Edham, 497 Pauk, 217 Pavkovic, Nebojsa, 48, 49, 137, 362, 375, 384, 478 n. 7 Pec, 87, 88, 377 Peel, Quentin, 431 Peraj, Nike, 382–84 Perisic, Momcilo, 48, 49, 61, 113, 150, 274, 275, 311, 373–76, 396, 478 n. 6, 478 n.7, 492 n. 6; letter to Milosevic, 75 persecutions, 26, 27, 214, 285–88, 425, 436, 437 Petkovci, 293, 297 Petritsch, Wolfgang, 71–73 Petrovic (officer), 61 Petrovic, Zoran, 95 Petrovo Selo, 102 Pilica, 295 Pionirska Street, 235 plans, 39, 131, 218, 483 n. 6; for Bosnia, 17, 129, 161, 162, 199, 200, 221, 224, 225, 253–55, 497 n. 28; for Croatia, 117, 118, 126, 157, 158, 161, 167, 183, 195, 199, 202, 415; for defense of FRY, 136; of disinformation, 148, 149, 158, 159, 482–83 n. 2 ; to enlarge Serbia, 5, 6, 17, 118, 119, 133–36, 145, 158, 161, 183, 195, 196, 219, 224, 319, 353–56, 439, 440, 487–88 n. 7; for Kosova, 25, 29, 30, 34, 35, 43, 53, 54, 70, 71, 80, 111–13, 378, 384; pattern as showing, 29, 30, 43, 56, 91–94, 336; for Racak, 66, 70; for Slovenia, 124, 127, 158 Plavsic, Biljana, 234, 288, 317, 437, 498 n. 3 plea agreements, 224, 288, 295–98 Plitvice, 184 Ploce, 402 Pocar, Fausto, 45 Podrinje region, 225 Politika, 131, 431 Politika Ekspres, 191 Poljanic, Petar, 182, 183 Popaj, Sabri, 385–87 Popov, Cedomir, 350 Popovic et al., Prosecutor v., 500 n. 13 Potocari, 292–95, 299–302, 417 Powell, Colin, 473 n. 16 Pozarevac, 430, 431 Prascevic, Milutin, 382 538  I n d e x

Prekaz massacre, 46 presiding judge. See May, Richard; Robinson, Patrick Prevlaka Peninsula, 183 Prijedor, 214, 249, 285, 318, 414 Primakov, Yevgeny, 355, 356 Pristina, x, 46, 68, 80, 85, 359 Prizren, 37, 40, 98, 105, 362, 376, 385 Prizren League Museum, 377 propaganda, 185, 186, 193, 263, 291, 319, 361, 396, 408, 409, 423; media used for, 14, 118, 131, 142, 149, 159, 191 prosecution, 209, 276, 324, 339, 446; application to reopen case denied, 423; burden of proof of, 5, 110–13, 116; close of case of, 296, 317, 319, 322, 385; contradiction by, 383; critique of, 6, 65, 177, 179, 248, 249, 278, 316–21, 367–69, 391, 431, 435, 439, 440, 512–13 n. 22, 513 n. 24; deadline for case in chief of, 44, 45, 81, 119, 137, 138, 151, 206, 207, 210, 277, 296; difficulties with defense case and, 44, 277, 357–63, 382, 391, 392, 397, 479 n. 27; Djindjic assassination’s effect on, 180; documents sought by, 136–38, 270, 271, 315, 316, 362–69, 391, 420; duties of, 249, 494 n. 33; FRY/VJ obstruction of, 57, 111, 136, 138, 180, 270, 271, 315, 316, 362–69, 391, 479 n. 27, 502 n. 47; independence of, 45; investigation by, 57, 67– 70, 367, 368, 476 n. 13; Milosevic’s crossexamination and, 44, 45, 110, 277; opening statements of, 2–21, 117–20, 326; reduced case of, 43, 44, 55, 110, 116, 151; rights of, 357; theory of, 439, 440; unfairness to, 360, 367–69, 422, 423; witness limits and, 81, 110; witness problems and, 105, 107, 111, 157, 174–79, 269–75, 296, 491 n. 18; written witness statements and, 43, 44, 55, 110, 111, 207, 248, 277, 296 Public Security Division, Serbian MUP, 50, 77, 159, 217, 273, 421 Pustenik, 378 Pusto Celo, 98, 109 Qirez, 33 Racak, 19, 23, 45, 52, 58–70, 333, 375, 381, 477 n. 9; autopsy reports, 479–80 n. 30 Radic, Miroslav, 192, 490 n. 9 Radio B-92, 221

Radojkovic, Bosko, 99–101 Radonic, Milan, 173, 175 Radosavljevic, Goran, 62, 67 Rakocevic, Aleksandar, 88, 89 Ramadani, Lutfi, 508 n. 11 Rambouillet, 41, 51, 73, 80; Helsinki Final Act and, 72; military annex, 71–74 Ramic, Mustafa, 237, 238 Ranta, Helena, 67–69 rape, 15, 20, 26, 43, 77, 82–86, 97, 235, 241, 244, 307, 318; law reform, 83, 84, 481 n. 9; as war crime, 83, 84, 214, 215, 285 Raznatovic, Zeljko. See Arkan RDB, 50, 77, 159, 217, 273, 421 reconciliation, 7, 8, 57, 81; ICTY role in, 246, 495 n. 3 Red Berets, 139, 155, 170, 222, 226, 227, 233, 244, 256, 275, 489 n. 20; Srebrenica and, 301; video of, 140, 174–79, 415, 416 Reka Plan, 368, 382, 508 n. 15 religious sites: in Bosnia, 215, 234, 494 n. 31; Catholic, 182–94; Muslim, 21, 26, 29, 48, 92–94, 112, 318; Orthodox, 94, 347, 377 Republic of Serb Krajina (RSK). See Croatian Serbs Republika Srpska (RS), 133, 152, 200, 202, 253, 402; Assembly of, 218–24, 233, 252, 254, 266, 289, 303, 307, 310–13, 317, 405, 406, 436; autonomy declared by, 353, 354; Dayton and, 270, 311, 313, 314; dependence on Serbia/FRY of, 218–24, 256, 257, 265– 67, 311, 319, 320, 406, 407; forces of, 299; leadership of, 227, 255, 264, 265, 269, 270, 288, 317, 320, 406, 425; ministry of justice of, 219, 234, 237, 300, 309, 437; policy of, 219–21, 251; presidency of, 288, 317, 436, 437; sanctions against, 149, 217, 252, 265, 268, 371, 404–9, 419, 492–93 n. 7; six-point agreement and, 264; six strategic goals of, 221, 255; transfer of territory to, 307; UN defied by, 260, 264. See also Bosnian Serbs; VRS Reuters, 243 Riedlmayer, Andraś, 92–94, 318, 377, 494 n. 31 rifampicin, 426–28 Ristic, Mile, 189 Robertson, Geoffrey, 446 Robinson, Patrick, 11, 66, 78, 81, 151, 160, 239, 274, 323, 324, 326, 329, 331, 335, 337, 339, 340, 350, 351, 360, 370, 410, 413, 425;

appointment of counsel suggested by, 82, 110; instructions by, 40, 345, 394, 395, 405, 414; intervention by, 381, 382, 416, 420; prosecution and, 249, 357, 368; rebuke by, 140, 141, 236, 249, 333, 396, 411; warning by, 327, 346, 368, 390, 408 Robinson, Svend, 359 Rogatica, 265 Rogovo, 386, 389 Romania, 99 Romano, Cristina, 83, 96, 436 Rowland, Jacky, 87 RSK. See Croatian Serbs RTV Belgrade, 86, 131, 399 Rugova, 52 Rugova, Ibrahim, 18, 47, 77–81, 114–15, 376, 475 n. 8, 481 n. 6 rules of procedure and evidence, 45, 98, 137, 253, 435; acquittal motion, 317; confidentiality, 315, 316; contempt, 106, 508 n. 3; dismissal of charges, 498 n. 42; documents, 362, 420; exculpatory evidence, 110, 236– 39; hostile witness, 177, 274, 275; perjury, 514 n. 33; replacement judge, 323; request for protective measures, 271; rule 89 C, 238; rule 92-bis, 43–46, 55, 207, 248, 277, rule 98-bis, 414; violations of, 62, 79, 82, 86, 110, 170, 171, 178, 236–39, 276, 277, 343, 344, 350, 357, 358, 361–67, 390–92, 408, 414, 420, 439–42, 474 n. 22, 511 n. 23, 514 n. 33; witness list, 277, 357. See also witnesses: boycott by rump presidency. See SFRY Russia, 181, 203, 210, 355, 425, 426, 445, 448 Ryneveld, Dirk, 12, 20, 86, 110, 380, 436 Ryzhkov, Nikolai, 355 Rwanda, 497 n. 26 Sacirbey, Muhamed, 259, 473 n. 14 safe area, 232, 267, 268, 495 n. 7; Belgrade involvement in, 307; Bosniak attack from, 225, 226, 261, 263, 304, 308; Bosnian Serb attacks against, 203, 251–67, 292, 293, 303, 304, 406, 407, 417, 419, 420, 501 n. 36; Bosnian Serb blockade of, 251, 260, 262, 265; demilitarization of, 251, 263, 304, 308; exchange of territory, 311. See also Bosnian Serbs: siege warfare practiced by Sainovic, Nikola, 51, 52, 67, 373 Samardzic, Nikola, 142–46, 163, 373, 402 I n d e x   539

sanctions: against FRY/Serbia, 18, 134, 149, 252, 266, 404, 406, 510 n. 14; by FRY/Serbia, 217, 252, 404, 405, 419; against RS, 149, 217, 252, 265, 268, 371, 404–9, 419, 492–93 n. 7; against RSK, 149; by UN, 252, 404, 510 n. 14 Sankoh, Foday, 474 n. 25 Sanski Most, 214, 245, 285, 318, 406, 414 Sant’Egidio Community, 46 SANU, 15, 22, 345–47, 351 Sarajevo, x, 183, 211, 214, 224, 232, 313, 317, 406, 439; Bosniak provocation from, 248, 254; Bosnian government in, 263; breadline massacre in (1992), 247, 495 n. 4; Markale marketplace massacre in, 248, 495 n. 4; plan to divide, 221, 252, 256, 493 n. 10; siege of, 17, 215, 219, 252–58, 431, 437, 496 n. 13; as UN safe area, 251, 256, 257, 308; VJ involvement in, 217 Sarajevo Romanija Korps, 248, 252, 437, 493 n. 10 Sarinic, Hrvoje, 156, 201, 202 Savic, Ljubisa (Mauser), 233, 494 n. 30 Saxon, Daniel, 69 Scharf, Michael, 431 Schomberg, Wolfgang, 8, 276, 303, 325, 341, 344 Schröder, Gerhard, 425 SDA, 213, 229, 244 SDB. See State Security Service, Serbia SDS, 17, 152, 224, 237, 245, 253, 352, 394; main board of, 298, 436 Sel, Janos, 365, 366, 387 self-representation, 7, 11, 31, 34, 45, 82, 105, 110, 207, 239, 249, 276, 278, 322–25, 328– 30, 334, 337–44, 414, 415, 435, 439, 440, 443, 506 n. 20; removal of right to, 57, 81, 151, 208, 328, 331, 429; state of international law on, 342, 434; United States law on, 209, 506 nn. 24–25 Sell, Louis, 345 Selmani, Merfidite, 376 Semberija, 255 sentencing, 295, 296, 303 Serb Autonomous Regions: in Bosnia, 17, 224, 353, 354; in Croatia, 122, 123, 159, 162–64, 167, 183, 202, 353, 354 Serb forces, 28, 30–32, 35–41, 52, 55, 59, 87; in Bosnia, 195, 213, 227, 233, 242, 258, 263, 318; in Croatia, 17, 118, 183, 203, 204, 412, 540  I n d e x

493 n. 12; ethnic cleansing by, 53, 80, 95, 183, 249, 318, 336, 382; in Kosova, 19–21, 29, 39, 50, 51, 53, 69, 71, 89, 113, 378–82, 385. See also Ministry of the Interior, Serbia; Srebrenica genocide; VJ Serbia, 22, 50, 58, 64, 74, 203, 264, 361; alleged conspiracy against, 68; army of, 134, 139, 168, 485 n. 40; Assembly of, 348; bombing of, 69; Bosnia involvement of, 136, 174, 195, 221, 227, 228, 246, 256, 257, 269, 315, 316, 423, 433; Bosnian Serbs armed by, 129, 224, 228, 256; criminal element in, 147; Croatia involvement of, 136, 148, 160, 170, 174, 193, 433, 493 n. 12, 510 n. 11; Croatian and Bosnian Serbs financed by, 166, 176, 218, 227, 230, 403, 407; Croatian Serbs armed by, 160, 170; enlargement of, 195, 196, 350, 353, 354, 403; evidence withheld by, 316, 443, 502 n. 47; execution video and, 423; leadership of, 270; legal counsel of, 402; mobilization in, 123; Montenegro and, 325; paramilitaries armed by, 227; pro-western government of, 98; sanctions against, 134, 252, 404; sanctions by, 252, 404, 405, 419. See also Belgrade; FRY; Milosevic, Slobodan; Srebrenica genocide Serbia and Montenegro, 354 Serbian Academy of Arts and Sciences, 15, 22, 345–47, 351 Serbian Democratic Party, 17, 152, 224, 237, 245, 253, 352, 394; main board of, 298, 436 Serbian Ministry of Defense, 139 Serbian Radical Party, 155, 276, 408, 409, 416; paramilitaries of, 188, 189, 410–12. See also Chetniks; Seseljovci Serbian Unity Congress, 332 Serbs: legal assistance to, 362; unity of, 23, 118, 133, 162, 164, 199, 219–24, 268, 270, 346, 347, 350, 354–56, 403, 404, 497 n. 30; as victims, xi, 227, 326, 345, 347, 350, 351, 391, 430. See also Bosnian Serbs; Croatian Serbs Seselj, Vojislav, 8, 155, 173, 178, 192, 223, 253, 276, 325, 341, 344, 383, 393, 408–17, 423, 474 n. 22, 498 n. 39; appointed Vojvoda, 510 n. 17; contempt of court, 506 n. 20; indictment by ICTY, 408 Seseljovci, 155, 253, 415; atrocities by, 189, 197, 411. See also Chetniks

SFOR, 73 SFRY, 23, 184, 198, 291, 347, 364; breakup of, 17, 121, 123, 126–29, 143, 158, 168–70, 218, 247, 326, 345, 352–54, 391, 399, 403, 404; presidency of, 16, 24, 121–26, 135, 160, 346, 393, 397–400; president of, 123; prime minister of, 212, 213; rump presidency of, 122–26, 130, 132, 143, 155, 160, 217, 399, 400 Shabani, Qamal, 32 Shelton, Hugh, 314 Sierra Leone, 474 n. 25, 513 n. 32 Silajdzic, Haris, 307 Silber, Laura, 411 Simatovic, Franko, 172–78, 231, 415, 416, 487 n. 5, 494 n. 30; Arkan and, 170, 171, 230, 337; Bosnia training camps and, 227; Krajina training camps and, 154, 159, 160; Red Berets and, 139, 140, 174 Simic, Jugoslav, 232 Simons, Marlise, 334, 502 n. 47 Simovic, Tomislav, 167, 168 Simunovic, Ivo, 186 Skelani, 225 Skorpions, 231, 420–24, 443, 494 n. 29, 511 n. 28 Sky TV, 254 Slavonia, 165–67, 187, 189, 193, 205, 206, 416 Sljivancanin, Veselin, 191, 196, 490 n. 9 Slovenia, 16, 200, 213, 400; constitution of, 127; independence of, 17, 124, 143, 169, 351; plans for, 124, 127, 158; war with, 124, 126, 127, 143, 474 n. 20 slow-motion genocide, 258–62 Smiljanic, Dusan, 152 Smith, Rupert, 256, 306–9, 419 sniper’s alley, 252 Socialist Party of Serbia, 16, 130–35, 269, 273, 355, 356 Solana, Javier, 314, 355 Sopina, 38 Soviet Union, 326, 354 Sparavalo, 378 Spasojevic, Predrag, 227 Special Operations Unit, 139, 155, 170, 222, 226, 227, 233, 244, 256, 275, 489 n. 20; Srebrenica and, 301; video of, 140, 174–79, 415, 416 Spremo, Jovan, 310 Srebrenica, 211, 217, 225, 227, 237, 256, 267,

268, 269, 331, 407, 414, demilitarization of, 303, 304, 308; fall of, 293, 304; siege of, 251, 252, 258–63; as UN safe area, 251 Srebrenica genocide, 203, 204, 214, 219, 258–63, 285–88, 291, 292–97, 431, 472 n. 10, 475 n. 7, 478 n. 7, 503 n. 51; denial of, 418, 423; Dutch Government report on (2001), 306; investigation of, 271–74, 420, 423, 498 n. 39; Milosevic’s responsibility for, 18, 290, 306–21, 417–24, 443, 503 n. 53; Mladic’s ultimatum and, 305; refugees from, 24, 134, 292–94, 299, 302–5, 485 n. 26, 501 n. 28; Serbia/FRY involvement in, 232, 263, 271–74, 289, 298, 301, 306–9, 315, 316, 337, 402, 403, 406, 407, 421–23, 502 n. 47, 502 n. 47, 503 n. 49; Skorpions and, 420–24; UN inaction, 265, 304; UN investigation of (1995), 418, 420; UN mission report on (1993), 260; UN resolutions on, 260, 264, 406, 407, 417, 420; VRS and, 267, 268, 293, 294, 298–306, 310, 311, 417, 419, 437. See also Bosnia-Herzegovina v. FRY/Serbia and Montenegro Srebrenica Seven trial, 320 Sremska Mitrovica, 194, 232, 244 SSNO, 122, 153, 168, 169, 363 Stakic, Milomir, 437, 499 n. 6, 512 n. 9 Stalin, Josef, 445, 446 Stambolic, Ivan, 16, 180, 181, 347, 489 n. 19, 493 n. 11 standby counsel, 8, 276, 278, 325, 338, 341, 344, 434, 443 Stanisic, Jovica, 47, 61, 75, 76, 139, 150, 159, 161, 166, 172–75, 180, 273, 275, 422, 477 n. 3, 487 n. 5; Arkan and, 230; Srebrenica and, 298, 309 state of emergency, 49, 61, 76, 123, 127, 400 State Security Service, Serbia, 11, 12, 47, 61, 62, 76, 77, 89, 102, 103, 107, 114, 154, 158, 161, 272; Arkan and, 139, 230, 231, 374; arrests by, 180; in Bosnia, 222, 226–32, 318; in Croatia, 17, 139, 159, 160, 164, 165, 167, 170–75, 178, 193, 194, 232, 411, 412; Milosevic’s control of, 140, 172, 273, 374; Red Berets controlled by, 139, 170, 174, 178, 222, 226, 275, 415, 416; Skorpions controlled by, 422, 423; in Srebrenica, 298, 315, 316, 422; Tigers controlled by, 230, 232, 374; training camps of, 227 State Security Service, Serb Krajina, 160, 175 I n d e x   541

state sovereignty, 9, 22, 50, 72, 73, 137, 443–45, 514 nn. 38–39 Stevanovic, Obrad, 37, 63, 66, 87, 88, 108, 109, 378, 420–22 Stoltenberg, Thorvald, 205, 206, 309 Stover, Eric, 432, 433 Stijovic, Dr., 88 Stijovic, Goran, 103–6 Stojcik, 356, 357 Stojicic, Radovan (Badza), 139, 155, 165, 166, 273 Stojiljkovic, Vlajko, 75, 101–3, 481 n. 7 Straza, 378, 509 n. 18 Studencani, 37 Suhareke, 20, 30, 36, 95–98, 105 Suljagic, Emir, 486 n. 44 Sullivan, Stacy, 505 n. 9 Supreme Command, 374, 375 Supreme Defense Council, 49, 181, 373, 401; FRY president as member of, 270, 275, 478 n. 8; minutes of, 270–72, 311, 315, 316, 319, 500 n. 19 Surroi, Veton, 41, 49, 71, 114 Susnjar, Milan, 235 Suva Reka, 29, 30, 36, 95–98, 105 Svilanovic, Goran, 180, 316 Syla, Xhevahire, 377 Tadic, Boris, 507 n. 11 Tadic, Dusko, Prosecutor v., 325, 475 n. 11, 505 n. 6 Tapuskovic, Branislav, 11, 135, 208, 234, 236, 241, 242, 246–48, 294–95, 297 Taylor, Charles, 442, 512 n. 14 territorial defense, 127, 139, 152, 156, 163, 412; of Bosnia, 213; of Bosnian Serbs, 217, 227, 247; of Croatia, 168, 199; of Serbia, 155, 217, 223; of Serb Krajina, 168; of Slavonia, 165, 167, 193 Terzic, Slavenko, 350, 351 Thaci, Hashim, 71 Theunens, Reynaud, 216, 493 n. 12 Thirtieth (and Fortieth) Personnel Center, 216, 272, 492 n. 6 Thomas, Francis Roy, 255 Tigers. See Arkan Tihic, Sulejman, 243–45 Tito, Marshal, 15, 16, 120, 148, 156, 162, 173, 212, 346, 496 n. 20

542  I n d e x

Tokyo Military Court, 2, 471 n. 5 Tolimir, Zdravko, 295, 301, 320, 501 n. 30 Torkildsen, Morten, 218 Trava valley, 382 Trebinje, 183–85 trial: abbreviated schedule of, 42, 151, 208, 277, 278, 324, 439, 478 n. 10; in absentia, 208, 341, 370, 442; adjournment of, 57, 208, 335, 337, 426; boycott of, 57, 210, 220, 322, 330, 334, 444; complexity of, 4–6, 57, 58, 79, 439, 440; critique of, 430–47; expeditiousness of, 207, 248, 325, 328; extension of, 210, 211; historic nature of, 1, 10, 12, 14, 31, 151; individuals and, 14, 21, 22, 437; influence of, 8; integrity of, 179, 238, 239, 328, 434; of leadership, 31, 44, 214, 320, 439, 443; length of, 6, 7, 27, 34, 42–45, 55–58, 79, 81, 110, 151, 207–10, 248, 249, 275–77, 324, 335, 392, 426, 429, 439, 512–13 n. 22, 513 n. 25; management of, 33, 43, 44, 57, 58, 78, 81, 82, 137, 138, 152, 210, 211, 248, 249, 275– 78, 323, 333, 338, 369; manipulation of, xi, 40, 41, 63, 103, 105, 138, 248, 249, 359–69, 390–92, 420, 425, 435, 439, 441, 484 n. 17; Milosevic’s control of, 7, 44, 210, 329, 343, 344, 429, 439; obstruction of, 57, 136–38, 171, 178, 179, 367–71, 435; order of presentation in, 20; political nature of, 13, 21, 22, 31, 40, 110, 151, 152, 325, 334, 341; public excluded from, 146, 147, 164, 193, 296; public interest in, 5, 6, 44, 57, 207, 208, 435; as purported show trial, 334; purpose of, 57, 208, 238, 325, 367, 380, 437, 438, 445, 484 n. 14; radical review of, 322, 324; recess of, 275, 324; Serbian reactions to, 7, 14, 423; victims’ interest in, 5, 57. See also fair trial; Milosevic, Slobodan: health of Treskavica, 232 trial court, 296, 351, 446; accused’s adversarial relationship with, 34, 343, 344; acquittal decision of, 286–91, 316–22, 413, 414, 431; appearance of unfairness by, 34, 152, 441; application to reopen case denied by, 423; cautiousness of, 249, 390, 392, 491 n. 19; contempt power of, 34, 105, 106, 341, 371, 392, 442, 444; counsel appointed by, 58, 81, 105, 429, 434, 442; critique of, 58, 65, 138, 141, 151, 152, 249, 315, 316, 429, 431, 440–43, 513 n. 29; decision on appointing

counsel of, 334, 335, 338–44, 441; decision on Skorpion video of, 423; deference by, 40, 44, 137, 365, 410, 443; discretion of, 45; disrespect toward, 21, 33, 408, 410, 414, 416, 511 n. 23; duty of, 151, 152, 328, 334, 414, 442, 513 n. 29; final judgment by, 320, 431; fraud against, 146, 239, 367–69, 392; frustration with defense case of, 356, 361, 362, 377, 378, 382, 388, 390–92, 397–99, 403, 412, 417, 419; inconsistency of, 34; integrity of, 239, 335, 343, 344, 371, 394, 395, 442, 513 n. 29; investigations by, 367, 368, 426–29, 442, 514 n. 33; law of genocide and, 286–91, 316–22; leniency of, 34, 110, 270, 271, 328, 333, 390, 392, 424, 429, 435, 441; orders of, 44, 137, 138, 277, 278, 324, 335, 366, 367, 370, 371, 427, 444; powers of, 338, 371, 492 n. 24, 514 n. 33; power to compel attendance of, 56, 334, 341; pro se accused and, 34, 45, 207, 249, 414, 429; prosecution and, 248, 249, 270, 271, 315, 316, 360, 367–69, 397; provisional release denied by, 425; reprimands by, 79, 248, 249, 356, 367–68; rulings of, 50, 84, 97, 98, 210, 211, 315, 316, 326, 365; Serb attitude toward, 130; summons by, 266; witnesses’ credentials questioned by, 140, 141; written witness statements and, 211 Trnje, 89, 90 Trnopolje camp, 249, 250, 318, 437, 499 n. 6 Trnovo, 421 truth commission, 438 Tudjman, Franjo, 16, 121, 124, 125, 128, 156, 162, 165, 185, 196, 200–206, 312, 313, 393, 394, 396, 401–4, 412, 438, 472 n. 11, 497 n. 28, 509 n. 1 Tumanov (general), 153, 154 Tupurkovski, Vasil, 400, 509 n. 7 Turajlic, Hakija, 259, 496 n. 17 Tuzla, 305, 308; massacre in, 256; as UN safe area, 251, 306, 501 n. 36 Uertz-Retzlaff, Hildegard, 12, 110, 160, 398, 436 Ulemek, Milorad, 217, 231, 422, 489 n. 20, 493 n. 11 UNESCO world heritage sites, 142, 182–87, 398 UNHCR, 37, 38, 259

United Nations, x, 23, 24, 204, 444; arms embargo by, 2, 19, 205, 213; Bosnia intervention by, 237, 249–52, 254, 264; Bosnia mission of, 258, 260, 261, 265, 308; criticisms of, 108, 250, 251, 258–62, 265–68, 304, 495 n. 6; Croatia mission of, 250; defiance of, 260; Genocide Convention of, 284; hostages and, 256, 304; Kosova mission of, 76; peacekeepers of, 162, 195, 196, 201, 296, 308; peace negotiations with, 203, 266; refugees and, 200, 308; sanctions by, 252, 404, 510 n. 14; secretary general of, 194, 251, 259, 263, 268, 405, 407 UN General Assembly, 260 UN Security Council, 76, 258, 259, 261, 444; Article VII, 19; criticism of, 267, 268, 445; FRY cooperation with, 138; FRY misrepresentation to, 418; genocide resolutions of, 260, 264, 406, 407, 417, 420; ICTR established by, 3; ICTY established by, 2, 12, 21, 240, 352, 514 n. 39; ICTY orders enforced by, 514 n. 39; Kosova arms embargo and, 19; Russian delegation and, 418; safe areas policy of, 267, 268; Srebrenica investigated by, 418, 420 United States, 22, 23, 33, 64; accusations against, 58, 326, 332, 407, 444, 445, 488–89 n. 17, 503 n. 51, 514 n. 43; arms embargo and, 205; in cold war, 354; constitution of, 209; Croatia backed by, 202–5; ICC and, 445, 448; ICTY backed by, 107; KLA and, 505 n. 9; Kosova and, 314, 315, 332, 336; law on self-representation of, 342, 344, 492 n. 22, 506 nn. 24–25; peace negotiations and, 203–5, 261, 264; secretary of defense of, 314; secretary of state of, 194, 327; Senate Foreign Relations Committee of, 215; Senate Republican Policy Committee of, 332; Srebrenica genocide and, 444, 503 n. 51; Srebrenica intercepts controlled by, 503 n. 51; testimony constrained by, 50, 425, 444; victims’ rights in, 491 n. 20, 492 n. 22 UNPA, 195, 203 UNPROFOR, 198–200, 204, 227, 249–51, 255– 60, 292, 299, 300, 305, 306, 402, 406, 419. See also Dutch Battalion Urosevac, 62–66, 378, 381, 479 n. 26 USAID, 80

I n d e x   543

Ustasha, 16, 23, 121, 142, 158, 159, 172, 186, 192, 292, 326, 394, 408, 432, 475 n. 6, 488 n. 8 Valjevo corps of JNA, 227 Van Baal, Adrianus, 255 Vance, Cyrus, 194–98, 260, 261, 266 Vance-Owen Peace Plan, 219, 220, 260, 266– 69, 403, 404, 496 n. 23 Vance Plan, 17, 134, 162, 168, 195–99, 201, 214, 215 van Lynden, Baron Aernout, 254, 256 Vasic, Dragomir, 299 Vasiljevic, Aleksandar, 151–57, 172, 273, 375, 401, 482–83 n. 2 Vasiljevic, Mitar, Prosecutor v., 234, 235 Vasiljkovic, Dragan, 154, 172–79 Velika Krusa, 387, 389 Venezuela, 258, 260 victims, 9, 30, 68, 152, 208, 214, 289–91, 326, 359, 369, 432, 437–46, 514 nn. 35–36; Serb, 13, 14, 18, 89–91, 150, 263, 391 Victim-Witness Unit of ICTY, 85, 482 n. 8 victor’s justice, 436 VJ: abuses by, 41, 50, 60, 61; alternative chain of command to, 48, 76; Arkan backed by, 231; in Bosnia, 217, 234, 269, 275; chain of command of, 375; control over, 275; creation of, 216, 405, 493 n. 9; defense case and, 372, 373, 377, 380–84; disciplinary action by, 115; doves in, 47, 113; general staff of, 216, 272, 363, 375; intelligence service of, 274; killings by, 30, 89, 90, 111; in Kosova, 28, 36, 51–53, 59–67, 71, 80, 89–93, 112, 336, 359, 372, 382–89; MUP vs., 49, 75–77, 272, 273; with MUP, 48, 60–67, 89, 95, 336, 364, 379, 381, 384–89; orders of, 111, 366; planning before war, 378; protection of, 362, 363, 391; Racak involvement of, 59–67; special forces of, 217; Srebrenica involvement of, 272, 309, 310; state of emergency in, 49, 61, 373; superiority to MUP of, 113, 272, 373, 389; VRS and, 216, 221, 256, 311 Visegrad, 214, 225, 234–37 Vlasenica, 307 Vlasic Mountain, 318 Vojna Linija, 153 Vojvodina, 15, 16, 120, 122, 155, 188, 346, 347, 354, 400; ethnic cleansing of, 412

544  I n d e x

Vollebaek, Knut, 114, 395, 396 volunteers. See paramilitaries Vreme, 177, 191 VRS, 215, 227, 234, 243, 308; chain of command of, 311, 406; draft resistance and desertion, 222, 223; establishment of, 216, 221, 222, 254, 405; First Krajina Corps, 296; forced mobilization by, 487 n. 4; FRY/ Serbia support for, 18, 133, 218, 219, 255– 57, 267, 272, 311, 403, 406, 433, 493 n. 8; funding of, 18, 216–18, 266, 272, 403, 406, 407; hostages of, 256, 304, 406; human shields used by, 256; JNA’s supplying of, 216, 218, 221, 253; main staff of, 216, 272, 286, 295, 300–303, 310; Milosevic’s influence over, 256, 257, 263–69, 272, 406; safe areas attacked by (1993), 251–67, 407, 417, 501 n. 36; safe areas shelled by, 203, 251, 256, 257, 267, 293, 303, 304, 419, 420; siege warfare practiced by, 219, 251, 252–58, 260, 262, 263; Srebrenica genocide and, 267, 268, 293, 294, 298–306, 310, 311, 417, 419, 437; Tenth Sabotage Detachment of, 295, 423, 498 n. 39; VJ’s support for, 216, 217, 221, 222, 256. See also Bosnian Serbs Vucetic, Slobodan, 352, 353 Vujanovic, Stanko, 192 Vukovar massacre, x, 15, 119, 143, 154–56, 166, 187–97, 437, 439; hospital in, 189–91, 196, 197, 490 n. 10. See also Ovcara massacre Vukovic, Vlatko, 387–90 Vulliamy, Ed, 250 Waespi, Stefan, 383 Walker, William, 42, 52, 62, 67 Western Slavonia Principle, 298, 302 White Eagles, 139, 233, 247 Williams, Michael, 216, 217, 251, 252, 258, 263–66, 312 witnesses: advance notice of, 357; bias of, 331, 332, 336, 350, 351, 355, 361, 391, 392, 395, 396, 424; boycott by, 57, 220, 322, 330, 334–36, 341, 370, 371, 392; coercion of, 361; compelled, 102, 104, 106, 129, 425; contempt by, 105, 106, 179, 370, 371, 392, 444; contentious, 388, 390, 392, 408–17; contradictory, 134, 273–75, 381, 383, 388– 91, 396, 398, 411, 412; credibility of, 191, 207, 235, 236, 317, 351, 367, 391, 477 n. 3;

danger to, 86, 118, 146, 147, 170, 171, 191, 193, 276, 383, 442, 506 n. 20; demeanor of, 207; duress, 358, 359; evasive, 397; expert, 62, 91–94, 114, 119, 138–41, 216–21, 247, 291, 307–10, 318, 319, 350, 351, 377, 486 n. 43; failure to provide list of, 277; fearful, 25, 55, 86, 105–8, 171, 191, 383; hostile, 56, 177, 274, 334; identity disclosed, 86, 147, 170, 171; impeachment of, 177, 191, 235, 245, 359, 377; insiders, 56, 75–77, 103, 105, 107, 111, 117, 119, 129–36, 151–67, 269–75, 297– 302, 393–423; international interlocutors, 34–41, 71–73, 114, 119, 194–97, 201–6, 216, 217, 251, 252, 258, 262–69, 312–15; leading, 343, 361, 366, 388, 393, 403, 404, 414, 419, 507 n. 1; limitation on, 42–45, 50, 81, 210, 245, 246, 333; Milosevic confronted by, 31, 47, 72, 111, 135, 149, 159–62, 169, 170, 201, 230–33, 243, 257, 380, 387, 432; Milosevic’s effect on, 76, 103–11, 130, 133, 134, 144, 155, 169, 170, 175–79, 269–75, 296, 366, 388–92; perjury by, 179, 343, 377, 442, 514 n. 33; protection of, 54, 82, 83, 106, 107, 136, 146, 147, 170, 171, 191, 296, 442, 506 n. 20; rebuttal, 110, 349, 385; recanting by, 103, 104, 110, 169, 170, 175–79, 359, 377; rehabilitation of, 275; right to confront, 43, 54, 207, 370, 435; rule 92 bis, 43, 44, 55, 57, 110, 111, 207, 211, 248, 277, 435, 479 n. 23; scripted, x, 63, 70, 354–62, 366, 390, 391, 393, 442; state monitoring of, 50, 270, 271, 402, 425, 444; summarizing, 42, 43, 477 n. 9; survivors as, 25, 26, 30, 31, 44, 83–87, 95–98, 111, 119, 189–91, 194, 228–30, 234– 36, 242–47, 253, 256, 292–95; tampering with, 179; threats against, 54, 106, 107, 147, 178, 191, 193, 343, 385, 442, 476 n. 2; trauma

of, 26–28, 84–86, 229, 236, 242, 244, 246, 379; unavailability showing, 360; waiver of state secrets for, 270, 271. See also crossexamination by Milosevic; evidence; rules of procedure and evidence Wladimiroff, Michail, 11, 109, 110 Women in Black for Peace, x, 471 n. 1 World Court: Bosnia case in, 58, 180, 259, 271, 285, 288–90, 315, 316, 407, 443, 444, 489 n. 21, 496 n. 21, 502 n. 47, 504 n. 72; FRY v. NATO in, 476 n. 13 Yeltsin, Boris, 355 Yugoslav forces. See JNA; Ministry of the Interior, Serbia; VJ Yugoslavia. See FRY; SFRY Yugoslav Kingdom, 348 Yugoslav Left, 181 Yugoslav Peoples’ Army. See JNA Z-4 Plan, 162, 203 Zafirovic, Nenad, 221 Zagreb, 128, 142, 187, 201–4, 263, 396, 399, 400, 412 Zdrilic, John, 105 Zemunja, Nikola, 149 Zepa, 203, 296, 308, 310, 419, 503 n. 51; as UN safe area, 251, 501 n. 36 Zeqiri, Agim, 26–29, 508 n. 10 Zhuniqi, Isuf, 386 Zivanovic, Milenko, 301 ZNG, 187 Zulic, Ahmet, 243–45 Zur, 28 Zvornik, 214, 223, 225, 415 Zvornik Security Center, 299 Zwann, Anthony, 291

I n d e x   545

Judith Armatta is a lawyer and journalist. She served at the Milosevic trial for three years as a legal analyst and commentator for the Coalition for International Justice.

Library of Congress Cataloging-in-Publication Data Armatta, Judith. Twilight of impunity : the war crimes trial of Slobodan Milosevic / Judith Armatta. p. cm. Includes bibliographical references and index. isbn 978-0-8223-4746-0 (cloth : alk. paper) 1. Miloševic, Slobodan, 1941–2006—Trials, litigation, etc. 2. War crimes— Bosnia and Hercegovina—History. 3. War crime trials—Netherlands—Hague. 4. Trials (Crimes against humanity)—Netherlands—Hague. 5. Yugoslav War, 1991–1995—Atrocities. I. Title. II. Title: War crimes trial of Slobodan Milosevic. kz1203.m55a763 2010 341.6'90268—dc22  2009051107