On September 26, 2002, the trial of Slobodan
Milosevic before the International Criminal Tribunal for
the Former Yugoslavia (ICTY) entered its second phase.
Milosevic, the former President of the Federal Republic
of Yugoslavia, began his journey to the Hague as a legal
matter when, on May 24, 1999, the first of three indictments
against him was handed down. The indictment (the Kosovo
Indictment), [1] charged Milosevic with the commission of war crimes and crimes
against humanity for his role in the expulsion of more
than 800,000 ethnic Albanians from Kosovo,
[2] and the death of 900 others from 1998 to 1999.
Milosevic's indictment was both legally and politically
significant as it was the first indictment to be issued
by an international court against a sitting head of state.
In September 2000, Milosevic was voted out of office and
relinquished his position as President of the Federal
Republic of Yugoslavia. He was subsequently surrendered
to the Tribunal on June 28, 2001 by Yugoslav authorities
pursuant to an international arrest warrant, and although
his rendition to the Tribunal was somewhat irregular,
his arrest was generally well-received by the international
community.
Following Milosevic's transfer to the ICTY,
he was served with the two additional indictments that
are the basis of the Prosecutor's current case. The first
(the Croatia Indictment) was issued on October 8, 2001
and charges Milosevic with the commission of crimes against
humanity and war crimes during the period 1991 to 1992,
through his participation in a joint criminal enterprise
which had as its purpose "the forcible removal of the
majority of the Croat and other non-Serb population from
. . . the territory of the Republic of Croatia that he
planned to become part of a new Serb-dominated state." [3]
The second (the Bosnia Indictment) was issued
a few weeks later on November 22, 2001.
[4] The 29-count indictment alleges that Milosevic
had both direct and command responsibility for crimes
committed in Bosnia-Herzogovina during the Bosnian war,
from 1992 to 1995. In particular, like the Croatia indictment,
the Bosnia indictment charges him with participation in
a joint criminal enterprise to "forcib[ly] and permanent[ly]
remove[ ] . . . the majority of non-Serbs, principally
Bosnian Muslims and Bosnian Croats, from large areas of
. . . Bosnia and Herzogovina." [5] Importantly, it is the only one of the three
indictments that charges Milosevic with the crime of genocide.
[6]
On January 30, 2002, the ICTY Appeals Chamber
held that all three indictments could be joined, reversing
the Trial Chamber's decision to the contrary. The trial
was scheduled to commence on February 12, 2002, and it
was agreed that the charges relating to the Kosovo Indictment
would be presented first. Because Milosevic refused to
engage a lawyer or have one appointed for him,
[7] the Tribunal ordered the appointment of three
lawyers to serve as amici curiae on his behalf.
[8]
Milosevic's trial opened with a dramatic
statement by Carla Del Ponte, Chief Prosecutor for the
Tribunal, who accused the former leader of conducting
the wars in Kosovo, Croatia and Bosnia with "an almost
medieval savagery" and "calculated cruelty." Milosevic,
unrepentant and defiant, responded that the Tribunal was
illegal and illegitimate. In a lengthy and bitter soliloquy,
during which he showed video footage and submitted photographs
in his defense, Milosevic categorically denied the truth
of the Prosecutor's allegations and countered that any
crimes that were committed in Kosovo were the result of
NATO actions or the work of the Kosovo Liberation Army,
not Serbian aggression.
As the first phase of the trial proceeded,
Milosevic, who appears to have had significant support
from behind the scenes, proved able in his own defense
in spite of concerns about his health. He exhibited an
extraordinary command of the facts and circumstances surrounding
the atrocities which are alleged to have occurred, and
demonstrated that he was more than capable in cross-examining
witnesses. He vigorously challenged or damaged the credibility
of several witnesses, and undermined the testimony of
a key Prosecution witness, Serbia's former secret police
chief Rade Markovic, who upon cross-examination largely
recanted his prior testimony concerning Milosevic's knowledge
of atrocities allegedly committed by the Yugoslav Police
and army in Kosovo.
On September 10, 2002, after 95 days of
hearings, the Prosecutor called its 124th
and final witness in the Kosovo phase of the trial. While
some commentators have suggested that the Prosecution
has failed to produce clear evidence that Milosevic planned
or ordered the atrocities in Kosovo, it clearly established
Milosevic's effective command and control of Federal Republic
of Yugoslavian police and army, and the involvement of
those forces in attacks on Kosovar Albanian villages.
In addition, a strong circumstantial case has been presented
that Milosevic must have known of the attacks, and did
nothing to prevent them or punish those involved, which
would appear to satisfy the test for command responsibility
set forth in the Tribunal's earlier decisions in the Tadic
and Celebici cases.
[9] Indeed, Milosevic's extraordinarily detailed
knowledge of the events that took place, and evidence
that was presented of a cover-up after the fact, cast
doubt on his assertions that he had no direct knowledge
of the crimes alleged. Testimony from Lord Ashdown, a
senior European politician who witnessed the destruction
of Albanian villages, and research presented by scientific
experts to refute Milosevic's allegation that NATO bombings
were responsible for the deaths of thousands of Kosovan
Albanians should also aid the Prosecutor's case.The only
consistent theme of Milosevic's defense has been his defiance
of the Tribunal and its authority, which is unlikely to
have a positive effect upon the three judges before whom
he now stands.
On September 26th, 2002, the
second phase of the trial began with opening statements
by the Prosecution and the accused, and the Prosecutor
is now scheduled to finish her case-in-chief in May.
Under tremendous pressure from the Tribunal to streamline
the proceedings, the Prosecution, which originally requested
permission to call 560 witnesses, is intending to call
only 177 witnesses, including the President of Croatia,
the Former President of Yugoslavia, other military commanders
and international figures. Both sides have complained
that they have been unable to obtain the presence of key
witnesses: Milosevic attempted to call several former
NATO leaders including former President Bill Clinton in
his defense, and Carla del Ponte has repeatedly stated
her frustration at being unable to obtain cooperation
from Belgrade and has hinted at difficulties with other
countries in securing the presence of official witnesses.
After a recess, the trial will resume and Milosevic will
present his evidence. If the former President remains
in good health, the trial should adjourn sometime next
year.
Although connecting Milosevic to the commission
of atrocities in Bosnia and Croatia, where he was not
in direct de jure control, is more difficult in
some ways than connecting him to the atrocities committed
in Kosovo where his legal authority was clear, the Prosecutor
has already established many of the facts relating to
the Bosnia and Croatia indictment in earlier cases, making
it difficult for Milosevic to now contest the facts.
For example, with respect to the Srebrenica massacre,
one of the major crimes of which he is accused, last summer
the Tribunal convicted General Radislav Kristic of genocide
for that massacre, finding it was the work of the Drina
Corps of the Bosnian Serb Army (VRS) under his command.
Moreover, in the Tadic case, the Appeals Chamber
found that the Yugoslav Army exercised sufficient control
over the Bosnian Serb army to render the conflict international
in character. This holding was affirmed in the Celebici
case. Those decisions are not formally binding on
Milosevic's judges; however, they will obviously be highly
persuasive and relevant to the instant case.
In her first statement to the Tribunal,
Carla Del Ponte noted that the Milosevic trial would be
complex, and would "test the very capacity of a modern
criminal court to address crimes which . . . extend so
far in time and place." [10] The case has proven complex, but not unmanageable;
difficult, but not impossibly so. No doubt more surprises
are in store for both sides before the end of this historic
trial. Then it will fall to the judges to render a decision
on the guilt or innocence of the accused, who faces a
possible sentence of life imprisonment.
About the Author:
Leila Sadat is a Professor of Law at Washington University,
and a member of the United States Commission on International
Religious Freedom. She is a member of the Executive Committee
and Executive Council of the American Society of International
Law, and the author of The International Criminal Court
and the Transformation of International Law: Justice for
the New Millennium.
[1] Prosecutor v. Milosevic, Case
No. IT-02-54, Indictment (May 24, 1999). The Indictment
was subsequently amended twice. The second amended indictment
was issued on October 29, 2001.
[2] Prosecutor v. Milosevic, Case
No. IT-02-54, Second Amended Indictment, para.
63 (October 29, 2001).
[3] Prosecutor v. Milosevic, Case
No. IT-02-54, Initial Indictment (Croatia), para.
6 (October 8, 2001).
[4] Prosecutor v. Milosevic, Case
No. IT-02-54, Initial Indictment (Bosnia) (November
22, 2001).
[6] The Prosecutor subsequently
filed amended indictments which reduced the scope of the
case, and in particular, indicated that it would not be
seeking to prove that genocide was committed in relation
to the Bosnian Croat population. Prosecutor v. Slobodan
Milosevic, Case IT-02-54-T, Scheduling Order Concerning
Amending the Croatia and Bosnia Indictments (Sept.
17, 2002).
[7] Milosevic argued that he has
"no intention of appointing counsel for a nonexistent
court." Prosecutor v. Milosevic, Case No. IT-02-54,
Trial Transcript, p. 8632, lines 24-25, (July 25,
2002).
[8] The three are Steven Kay, Branislav
Tapuskovic, and Michaïl Wladimiroff. A recent controversy
has erupted with regard to whether Wladimiroff can continue
to represent Milosevic, after he was quoted (or misquoted,
it is not clear which) in a Dutch newspaper to the effect
that the proof tendered by the Prosecutor in the Kosovo
Indictment established Milosevic's guilt.
[9] In the Celebici case,
the Tribunal held that a superior may be held criminally
responsible if information comes into his possession that
provides notice of offences being committed by subordinates.
Prosecutor v. Delalic, et al., Case No. IT-96-21-T,
Judgment, para. 393 (Nov. 16, 1998), aff'd Prosecutor
v. Delalic, et al., Case No. IT-96-21-A, Judgment,
para. 238 (Feb. 20, 2001) (holding that "[a] showing that
a superior had some general information in his possession
which would put him on notice of possible unlawful acts
by his subordinates would be sufficient to prove that
he had 'reason to know.'")
[10] Prosecutor v. Milosevic, Case
No. IT-02-54, Trial Transcript, page 5, Lines 13-15
(Feb. 12, 2002).
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