He is accused of committing crimes against humanity, but a verdict in favour of Slobodan Milosevic could represent a blow to the reputation of the international tribunal in The Hague. By Hugo Miller
More than four months ago, in the early evening of June 28th, a disbelieving Slobodan Milosevic was hustled out of Belgrade’s main prison. His motorcade passed a crowd of equally stunned supporters en route to a waiting helicopter. >From there, Milosevic was flown the short distance to a US army base in Tuzla, Bosnia, and then by military plane to the UN-controlled Scheveningen prison in The Hague. After a decade of first trying to contain and then capture the former Yugoslav leader, his removal from Belgrade to The Netherlands was almost anti-climactic: door-to-door, as it were, in little more than five hours, and with scant resistance from Milosevic or any of his cronies. That, it turns out, was the easy part.
Four months later, Milosevic is still in his cell under indictment by the International Criminal Tribunal for the Former Yugoslavia. He awaits trial on charges of crimes against humanity for authorising the mass deportation and killing of ethnic Albanians in Kosovo in 1998 and 1999. With the tribunal’s chief prosecutor Carla del Ponte and her team of lawyers still painstakingly building the case against Milosevic, the trial itself is not scheduled to begin until February 12, 2002. A verdict is not expected much before 2003. This gives veteran Balkan-watchers plenty of time to contemplate the outcome – and to think the unthinkable: what if Milosevic were not found guilty? While almost no one doubts Milosevic’s culpability, proving it in court on all counts is not just a test for the tribunal’s prosecutor. It is also a test of the tribunal’s authority and reputation for years to come.
The case against Slobodan Milosevic is, in theory, a straightforward one. The indictment for the killings in Kosovo is "as open-and-shut as a case could be", according to James Gow, professor at Kings College, University of London, former expert witness for the tribunal and author of the forthcoming The Serbian Project and Its Adversaries: A Strategy of War Crimes. It relies heavily on the discovery of mass graves in a suburb of Belgrade containing the bodies of ethnic Albanians killed in Kosovo.
On Milosevic’s order, it is claimed, many of these bodies had been moved from earlier graves in Kosovo and brought back to Belgrade. The exhumations were allegedly done to allay fears that Nato forces would uncover the graves as they overran Kosovo and use them as evidence of war crimes. Nato intercepts of communiqués between Milosevic and his generals should prove to be key evidence of this, as will testimony from those within his Belgrade regime who have agreed to act as witnesses against him. Del Ponte’s multi-pronged strategy should make it relatively straightforward to link Milosevic to the killings in Kosovo.
But the Kosovo indictment, although perhaps the easiest to prosecute, is not the only one against Milosevic. A second indictment for alleged crimes in Croatia during the early ’90s was issued in October. Though this accusation stops short of charging him with genocide, it states that the Serbian leader oversaw, in the words of prosecutors,"the forcible removal of the majority of the Croat and other non-Serb population from approximately one-third of the territory of the Republic of Croatia". The tribunal is not accusing Milosevic of having actual blood on his hands, but that his "regime included the extermination, willful killing or murder of hundreds of Croats and other non-Serb civilians." A third indictment for responsibility for atrocities in Bosnia is expected soon, and is likely to include charges of genocide.
With each additional indictment, the case against Milosevic theoretically hardens. "I cannot see one of the three not succeeding," says Marc Weller, a lecturer in international law and specialist on the former Yugoslavia at the University of Cambridge. But, like Gow, Weller believes that the Kosovo indictment will be the easiest to prove. The danger for the tribunal is that as it pushes for a conviction on all three counts, it may fail on either the Croatian or Bosnian indictments.
In the cases of Croatia and Bosnia, responsibility for any mass killings will be far harder to prove. Time will play a critical role. Kosovo was two years ago, but the expected Bosnian indictment will date from the early to mid-’90s, and the Croatian one from a decade ago. In the case of Bosnia, Milosevic’s defence team – if he chooses to have one – could argue that former Bosnian Serb president Radovan Karadzic and Bosnian Serb army commander Ratko Mladic were in charge. Milosevic, they will claim, cannot be held responsible for the actions of rag-tag militia that roamed across Bosnia. Finding direct evidence – documents or witnesses – that can attest to Milosevic’s authority over those two men will be difficult. In the case of Croatia, too, proving the link between Milosevic’s authority and planning of the atrocities will be hard.
Del Ponte’s strategy will be to place Milosevic at the scene of the crime, so to speak, in the two former Yugoslav republics. Even if his de jure authority did not extend beyond the republic of Serbia, del Ponte must prove he had de facto authority beyond the republic’s borders if she is to secure a conviction on those counts. One woman who could be instrumental to a Bosnian conviction is Biljana Plavsic, who succeeded Karadzic as president of the Bosnian Serb Republic in 1996. Unlike Karadzic and Mladic, who remain holed up in Bosnia, surrounded night and day by guards, Plavsic voluntarily submitted herself to The Hague. In agreeing to act as a witness against Milosevic, she won her request to await her trial back in Bosnia. (She is the only female detainee and claimed Scheveningen Prison’s quarters are not designed for women.)
Still, the court has clearly set itself a difficult task. It is a new institution, created by a 1993 UN Security Council Resolution, that came in for criticism for being merely a tool in the hands of western governments. Since then, particularly under the auspices of former chief prosecutor Louise Arbour and the incumbent del Ponte, the tribunal has gained a reputation for the impartiality of its judges and the rigour with which its prosecutors sought evidence. Earlier convictions of Bosnian Serb and Croatian soldiers (and the recent indictments of Bosnian Muslims) have helped in this respect. But in Milosevic the tribunal has its biggest catch of all. Which verdict is reached and how long it takes to reach will have repercussions for the tribunal itself and could set major precedents for international law.
A failure to secure a guilty verdict on all three counts could have one of two consequences. First, it would send the message that the court is not just a puppet of the west, as some critics suggest, but an impartial court of judgement that is not set on convicting Milosevic on all counts, locking him up and throwing away the key. "It might demonstrate due process and show the court to be fair and impartial," says Gow. On the other hand, he says, a not-guilty verdict in one case could sow seeds of doubt about the veracity of other, guilty verdicts. This could mushroom, he says, to the point at which people begin to question the legitimacy of the whole process. "In adding indictments over Croatia and Bosnia," he says, "the prosecutor has created an unnecessary mountain to climb."
Then there is also Milosevic’s wiliness to consider. In his four months of incarceration he has proven to be as unpredictable as he was in 12 years in power. No one knows how he will react as his trial approaches. In early August, fewer than six weeks after his arrival in The Hague, Milosevic filed a motion contesting the authority of the tribunal and requesting that his case be dismissed. This motion was dismissed by a Dutch court, which recognised the legitimacy and authority of The Hague tribunal. Moreover, Milosevic had given the court his own endorsement by signing up to the 1995 Dayton Peace Agreement, which called on all signatories to respect the authority of the of war crimes tribunal for the former Yugoslavia in bringing war criminals to justice. Then, in 1996, he gave the tribunal a further sign of his willingness to cooperate by delivering to it a minor indictee, Drazen Erdemovic.
But Milosevic surprised the court on August 24 by announcing that he did not want a defence lawyer. A week later the tribunal countered by appointing amicus curaie – a "friend of the court" – to act in Milosevic’s interests. In fact, three lawyers – Dutch, British and Yugoslav – were appointed not so much to defend Milosevic as to ensure fairness by intervening when they deem it necessary. This again will be a big test for the tribunal: getting Milosevic but proving to its critics at the same time that he was given a fair trial.
Experts do not see Milosevic’s stalling tactics ultimately affecting the pace of the trial. "I can’t see any more actions on his part inhibiting the court’s proceedings," says Weller of the University of Cambridge. In fact some legal experts say that Milosevic’s refusal to cooperate with the court – considering the lengths it has gone to offer him legal counsel – will speed up the case against him. However, a quick conviction is not necessarily in the interests of the long-term reputation of the court. A long trial, or even a delay in proceedings, says Weller, "would be evidence of them doing a thorough job".
But whether it be in 2003, or even 2004, is it possible to conceive that Milosevic might one day wriggle free? Almost impossible, believe the experts. With two indictments already against him and a third on the way, "it is not a possibility I would realistically consider," says Weller.
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