Analysis: Penetrating Milosevic's Inner Circle

Prosecutors in the Milosevic trial last week revealed key obstacles blocking their attempts to prove the former Serb leader's guilt.

Geoffrey Nice, the chief prosecuting counsel, explained the difficulties facing his team during one exchange at the tribunal. "Cases like this would be easy to prove in a short time if there was one member of the accused's inner circle who was able to give a fully accurate and acceptable testimony of everything that happened. Maybe the case could almost be proved by a single witness," he told the judges.

"Unfortunately, life isn't like that. As regards the witnesses, the closer they were to the accused, the more difficult they are to approach and to use."

The problem was not just the reluctance of such witnesses to come to The Hague and testify, but the "adversarial system" used. This, Nice explained, is "effectively based on the premise that you have to take a witness in toto rather than saying, 'Well, this bit we accept, and this bit we reject and would wish to cross-examine'."

Although he himself comes from a common law system, Nice believes alternative legal procedures might be more suitable in cases such as these. He urged the judges to consider using one where witnesses close to the accused "whether they like it or not, would be hauled before the examining court and interrogated by the examining judge or by an advocate, accepting the bits that were acceptable and cross-examining as to the balance".

These words acquired new relevance last week when it was confirmed that Zoran Lilic, the former Yugoslav president and undoubtedly a member of the defendant's inner circle, had been forced to pack his bags and come to The Hague.

"Subpoena was issued and acted upon," was the laconic comment of Florence Hartmann, the prosecutor's spokesperson.

Lilic was federal president from 1993 until 1997 and deputy federal prime minister for the next two years. In spite of the top posts he occupied in the period relevant to the Bosnia and Kosovo indictments, Lilic is not listed as a participant in the "joint criminal enterprise", or as Milosevic's "co-perpetrator", so he remains safe in The Hague as far as the prosecution is concerned.

However, he is not safe from the defendant. They parted political ways in mid-1999 and the former Serb leader may try to take revenge on him in the cross-examination - not simply by denigrating him personally and politically but by trying to expose Lilic's involvement in things for which Milosevic himself is accused. To coin Nice's paraphrase, the latter might try to dispute the witness's testimony "in toto" and thus throw a question mark over the "acceptable bits" that the prosecution wishes to employ.

Much will depend on the way Lilic acts in court and on what he is willing to say. Milosevic showed last week, during the questioning of protected witness K-25 - a Serbian former member of the elite police special units who was engaged in Kosovo several times in 1998 and 1999, that he can treat prosecution witnesses with respect.

Except for the two incidents that he witnessed on March 25, 1999, everything else that this policeman said sounded like material for the defence rather than the prosecution - especially during cross-examination.

On the day after NATO air-strikes began, K-25's unit was deployed in Kosovo between the villages of Velika Krusa and Mala Krusa to expel rebel forces of the Kosovo Liberation Army, KLA, and "evacuate the civilians from the combat zone".

At one point, he saw members of his unit had brought in six prisoners, allegedly in uniform with KLA insignia, and handed them over to the local police located in the same area. After these policemen took the prisoners to a nearby house, gunfire was audible, and the officers returned alone.

Not long after, three more prisoners were taken in and handed over to the local police who took them to another house. Again, gunfire was heard and the officers again came back alone. The witness thought there was something "suspicious" about this, so he later went to the first house and saw bodies in a pile. He did not enter the second house

In cross-examination by Milosevic, K-25 said that "as far as he remembered", he had reported these incidents to his superior officer but because of the "tempo of operation" he never discovered what happened or if anyone was punished for killing the prisoners.

However, the rest of his testimony confirmed Milosevic's claims that a police "cleansing operation" in Kosovo in 1998 and 1999 targeted only "KLA terrorists", not civilians, and that police orders were not to shoot at "terrorists" if it posed any danger to civilians. He also alleged that Kosovo Albanians were not forced to leave their villages but were only "evacuated them from the combat zone" for their own good.

Milosevic treated K-25 with total respect and the witness replied in tones of near veneration, as if the accused still was his commander in chief. However, it is possible that a trick the former Serb leader played at the start of the cross-examination has something to do with this.

The ruse involved publicly disclosing several important facts about K-25, exposing just how limited tribunal efforts to conceal the identity of protected witnesses are.

He disclosed in open court that K-25 was a deputy police chief in "a large town" in Serbia, that he had received a medal for displaying courage in the "NATO aggression" and had been promoted from corporal, his rank in 1999, to lieutenant and then captain.

Since questioning had already revealed that K-25 came from Vojvodina in northern Serbia, the extra information Milosevic disclosed in spite of the court order for protective measures is quite enough to determine the identity of the "protected" witness.

Where professional defence lawyers would have been seriously reprimanded for such disclosure, or even charged with contempt of court, the judges let Milosevic get away with it.

Close to the end of his testimony, Judge O-Gon Kwon asked the witness several precise questions about the executed KLA prisoners, and how the witness and his superiors had acted on this occasion. K-25 replied that they had done nothing, as they were under orders to hand the prisoners over to the local police.

There were other firsts last week.

Milosevic allowed for the possibility that one of the crimes described in the indictment really did occur. Following a judge's suggestion, he also skipped a cross-examination during the testimony of Shyhrete Berisha, who lost her husband, four children and more than 40 members of her family in an alleged massacre at a pizza parlour in Suva Reka, Kosovo, on March 26, 1999.

Three witnesses from the family have described the killings so far, but Shyhrete is the first survivor who was actually in the restaurant to appear before the court.

She survived by playing dead. After the massacre, the police loaded her on to a truck with other bodies, from where she jumped out and escaped in spite of being badly wounded.

After the summary of her written statement was read out before the court, Judge Richard May suggested to Milosevic that "for once" he might "restrain" his questioning, "given the circumstances of her evidence".

Milosevic agreed and did not cross-examine, but requested the inclusion of a statement of one Marian Krasniqi in the evidence after finding the statement in the materials disclosed by the prosecution.

He quoted part of that statement, which, according to what the accused read out, claims "local criminal gangs, which engaged even mentally deranged persons", carried out the massacre and that money was the main motive for the attack on the family.

Since the judges insisted the witness be allowed to reply to this, Shyhrete Berisha was finally allowed to speak before the court. She replied that the killers were policemen, not a gang, and she described how 30 armed and uniformed police surrounded and the houses of the Berisha brothers and set them on fire, killing several young men on the spot including her husband, and taking the rest - mostly women and children - to the restaurant where they were massacred.

The judges told Milosevic he could summon Krasniqi as his witness if he wished. The accused did not disclose whether he would, possibly because Nice found and read the statement used by the defendant and declared that it "was not favourable for the accused at all, but the other way around". In fact, he said he might invite Krasniqi as prosecution witness.

A testimony was also heard last week, part of which may be relevant for the Bosnia and Croatia indictments, as it illustrated the degree of Milosevic's influence on the Croatian Serbs as well as his attitude towards the Bosnian Muslims.

In his testimony, the former Norwegian foreign minister, Knut Vollebaek, described his first meeting with Milosevic, then Serbian president, in autumn 1993, when Oslo diplomats were trying to organise secret negotiations between Croatia and the breakaway Serbs in Republika Srpska Krajina, RSK.

Convinced that Milosevic had a "certain influence" in the RSK capital of Knin, Vollebaek visited Belgrade and asked the Serb leader for help, which he was "more than willing" to give.

Since Croatia was waging war on two fronts - against the Serbs in the RSK and the Muslims in central Bosnia and Herzegovina - Milosevic promised to ask Knin to join the negotiations and cease its actions against Croatia, enabling the Croats to concentrate on the Muslims.

Vollebaek said Milosevic told him this development would be "important for all of us... because we must not allow the creation of a Muslim republic in Europe". The defendant kept his promise, and the Krajina Serbs attended the talks in Norway. This fact assured Vollebaek "that Milosevic had great influence on the Serbs in Croatia".

In his cross-examination, the accused tried to persuade Vollebaek that the danger he had tried to warn him about was not of a "Muslim republic" but "Islamic fundamentalism". However, the witness clung to his original interpretation of the conversation in 1993, stressing that he regretted having missed a chance to react against views that went "against his own understanding of human rights in Europe".

As well as underlining Milosevic's hold over the Serb rebels in Croatia and his attitude to Bosnian Muslims, Vollebaek supported the testimonies of many previous witnesses who had spoken of the former leader's power over Serbia and federal Yugoslavia.

For Vollebaek it was confirmed in his meetings with Milosevic in 1998 and 1999 when he presided over the Organisation for Security and Cooperation in Europe, OSCE, under whose auspices the Kosovo Verification Mission, KVM, operated.

Vollebaek said Milosevic "had great power in his hands" and "commanded and organised things". He was the man "whose presence was strongly felt and who talked and made more conclusions in the meetings than anyone else". His motive was his "quest for personal power".

Adding another key detail to the statements of some earlier witnesses who described Milosevic's state of mind just before NATO air strikes began on March 24, 1999, he described the failure of his last attempt to stop them.

As OSCE president in cooperation with the then NATO general secretary, Javier Solana, several hours before the first bombs fell, Vollebaek telephoned the former Serbian president to explain just how serious the situation was. The Norwegian minister said Milosevic not only failed to share his worries and estimation of the situation but practically made fun of him.

According to Vollebaek, Milosevic explained the presence of Serbian army and police units in Kosovo as being for the protection of international observers and said the convoys of Kosovo Albanians moving towards the Albanian and Macedonian borders, with their property on tractors, were "going to a picnic".

He said the smoke rising from Albanian villages was the work of KLA terrorists who were burning straw to give the impression that the police were burning Albanian houses. When the Norwegian minister answered that he had seen all this with his own eyes while visiting the OSCE mission in Kosovo, Milosevic retorted that he had been watching too much TV and that "CNN [had] forced a delusion upon him".

Vollebaek recalled that he had nothing left to say at this point, except that he was sorry the defendant failed to realise the seriousness of the situation. He invited him to call if he changed his mind.

Milosevic did not call and the two men never met or heard from each other again, until last week's reunion in the courtroom.

Mirko Klarin is IWPR senior editor at the war crimes tribunal and editor-in-chief of SENSE News Agency.