Clark Says Milosevic Had Foreknowledge of Srebrenica, Intention to Kill Albanians

MILOSEVIC'S OVERALL CONTROL

Former NATO General Wesley Clark gave some of the most critical evidence in the nearly two years of Slobodan Milosevic's trial for war crimes, crimes against humanity and genocide. General Clark served as NATO Commander during the Kosovo war and was part of the team that negotiated the Dayton Accords ending the war in Bosnia-Herzegovina. During that time he had over 100 meetings with the former president of Serbia and the Federal Republic of Yugoslavia.

General Clark was the first witness to link Milosevic with Srebrenica, the site of the worst mass killings on European soil since WWII. On August 17, 1995, one month after the Srebrenica massacres, General Clark, together with US Ambassador William Holbrooke and others, met with Milosevic to discuss plans for the negotiations that ultimately led to the Dayton Accords. At one point, Clark asked him 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 that the Bosnian Serbs would sign. The witness remarked that it seemed improbable the president of one country could guarantee acceptance by another country. Milosevic, confident that he was the leader of the Serbian people, responded that they would hold a referendum; the Bosnian Serbs would not go against the will of the Serbian people.
General 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 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.’'

General 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. It had been the starting point for the international agreements which led to NATO's increased resolve to see an end to the fighting in the Balkans. So it was very clear what I was asking. It was also, to me, very clear what Milosevic was answering. 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.”

Though highly important testimony about Milosevic’s foreknowledge of Srebrenica, this evidence raises a number of critical questions that the Prosecution must provide answers to if it is to prove its genocide charge. Putting aside the issue of whether the massacre of 7,000 to 10,000 Muslim men and boys at Srebrenica meets the legal definition of genocide, which an appeals panel is considering in the Krstic case, to prove a genocide charge the Prosecution must show that Milosevic had the specific intent to destroy a protected group of people in whole or in part. Foreknowlede is not enough. While those in command have a legal duty to control their subordinates, Milosevic had no de jure (legal) control over Mladic. Moreover, even if de facto (actual) control is sufficient, it has not been established legally that one can be held responsible for genocide on a theory of command responsibility, because failure of duty as a commander does not carry the specific intent to destroy which is required for genocide.

The Prosecutor has also charged Milosevic with complicity to commit genocide. At a minimum, the prosecution must show that Milosevic, knowing of the genocidal intentions of his accomplices, participated in some act that was part of the genocide. Knowing of Mladic's intention, did he supply soldiers, as witness B-1401 testified a few days later? The evidence is so far insufficient.
Milosevic’s admission to Clark can also be considered exculpatory. He warned Mladic not to do it (according to Clark, not to undertake a campaign to kill Bosnian Muslim civilians). On the other hand, Milosevic contends 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 Bosnian Serb Assembly sessions (introduced earlier in the trial) also establish that Milosevic had sufficient influence over the Bosnian Serbs to prevent an attack on Gorazde a couple years before. And, as General Clark pointed out, there was no way to know if Milosevic was telling the truth about warning Mladic not to proceed with the campaign.

Uncharacteristically, Judge May asked Milosevic directly, “Did you speak to the General at all about Srebrenica?” The Accused 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 the fact that he took contemporaneous notes and that he communicated the conversation to others. In 1998, in a letter to then Chief Prosecutor Louise Arbour, Clark offered to testify about it before the ICTY.
As General Clark told the Court, Milosevic attempted to have it both ways – to claim he had great influence and could control the Bosnian Serbs, then excusing himself from responsibility for their crimes. During the course of 100 meetings with Milosevic, General Clark had the opportunity to study his behavior and his relationship to those around him. Providing a number of specific examples, General Clark presented a man who controlled people and events and considered himself the leader of the Serbian people, wherever they were located.

At Dayton, for example, General Clark, worked on a military annex to the Agreement authorizing the placement of UN troops in Bosnia. He ran into a major obstacle when Momcilo Krajisnik, member of the Bosnian Serb Presidency, rejected nearly the entire draft Clark had worked out. Responding to Milosevic’s directions that he should come to him with any problems, the General did. The Draft Military Annex was soon returned to him with only minor changes. When Prosecutor Geoffrey Nice asked the General what that revealed about where the decision-making power lay, he replied, “[I]t revealed to me that President Milosevic was fully in charge of the delegation.”

Another revealing incident at Dayton occurred when Milosevic gave away Krajisnik’s farm without consulting him, simply by drawing a red line on a map which transferred Bosnian Serb territory to the Bosnian Government. At the end of negotiations, it was Milosevic who initialed the Agreement, not the Bosnian Serbs.

In a later incident in 1997, when a Bosnian Serb mob threatened the UN Stabilization Force guarding a television antenna in Brcko, General Clark called Milosevic and the mob dispersed within a half hour. It demonstrated, according to Clark, that Milosevic “still had extraordinary influence if not control.”

BOSNIAN SERB ARMY & VJ/JNA WERE INTERTWINED

General Clark also corroborated testimony of prior witnesses that the Bosnian Serb Army (VRS) was carved out of the Yugoslav People’s Army (JNA) and, for all intents and purposes, remained intertwined. JNA officers led VRS troops. VRS soldiers were trained by the JNA at JNA training centers. The FRY paid their salaries. This relationship did not change when the JNA became the VJ (Army of the newly constituted Federal Republic of Yugoslavia, FRY). As General Clark explained it to the Court, “It was our view that the Serb military, that the VRS was closely connected to the military of the -- of Yugoslavia, the VJ. We knew this from electronic evidence, from reliable sources, and we even at one point went and told the Serb military that they had to turn off the air defence connectivity that linked the air defence system in Bosnia with that in Serbia.” It was an integrated air defence system, Clark explained, inherited from the former Socialist Federal Republic of Yugoslavia which proved useful to the FRY and the Bosnian Serbs. When asked what its integrated nature revealed about the connection of the VJ and VRS, the General told the Court, “It meant that there was an integrated control of the system so that decisions to fire or decisions to turn on radars and so forth were likely to have been made by Yugoslavia, not by the Serbs themselves in Bosnia.”

MILOSEVIC'S SOLUTION FOR KOSOVAR ALBANIANS: 'KILL THEM ALL'

The other area where General Clark provided very clear and useful evidence was on Kosovo and the lead up to war between the FRY and NATO. The General, as NATO commander, was involved in more than a year of negotiations that ultimately failed to prevent war. As he did at the time, he provided a clear view of the circumstances which led to the conflict. Most of it was given during Milosevic’s cross examination.

General Clark met the Accused’s aggressive cross examination head on. Milosevic contended that the FRY and he as its president were taking legitimate action against Kosovar Albanian terrorists, action that is the right of all sovereign states. General Clark responded that he did not accept that the Kosova Liberation Army (KLA) were terrorists. He told the Court that Serbia had subjected the Kosovar Albanians to extreme repression for a decade, including selective killings, and cut off all possibility for a political solution. As a result, a small number of Kosovar Albanians picked up weapons and fought back. Eventually, they became the KLA. Stating that the issue was the Serbian police and military’s disproportionate use of force, Clark went on to explain, “I was trying to explain to General Djordjevic. 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 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.'

The witness gave an example of the attack on the Jashari family compound in early 1998, recounted to him by then Macedonian President Kiro Gligorov, whose state was approximately one-third Albanian. Knowing that Adem Jashari was a KLA leader, the police surrounded his house. There were unarmed women, children and old people inside, yet the police attacked with heavy weapons, killing 60, including a number of the women, children and elderly men. According to Clark, “President Gligorov . . . warned me that this is the kind of incident these people, 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 Albanian resistance and an even more disproportionate response.

By late summer, early autumn 1998, VJ/MUP (Serbian Police) actions in Kosovo had resulted in 350,000 to 400,000 people displaced from their homes, many of them living in the woods and hills. At the time, humanitarian organizations feared a major humanitarian disaster if they could not return to their homes before winter.

In a negotiating session aimed at withdrawing Serb forces to avert the impending disaster, General Clark asked General Vlastimir Djordjevic, head of MUP Public Security to point out the location of KLA forces on a map. The Prosecutor asked him 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 -- words to the effect, 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.’” NICE: “Very well. Did you say anything further about the appropriateness of . . . using force?” CLARK: “I made it clear that that wasn't appropriate, it was illegal, against the law; it's not done.”

Confirming earlier testimony by General Klaus Naumann who was with him at the time, General Clark related a chilling incident with Milosevic that shocked both men. It occurred during a relaxing moment following intense negotiations in October 1998 to reduce tensions and prevent a humanitarian disaster in Kosovo through the pullback of FRY forces, thereby preventing NATO bombing. Agreement had been reached and the parties were waiting for it to be typed up. General Clark drew the picture for the Court, as General Naumann had before him, “President Milosevic was musing philosophically. . . . And he 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.’'

During Milosevic’s cross examination, Judge Robinson asked the witness if the Accused might not have been referring to all Albanians, but only to those who were murderers, rapists and killers of their own kind. Clark said he thought Milosevic’s intent was very clear. Milosevic, during cross examination, attempted to explain that he was referring to remnants of Albanians who supported Hitler in WWII. They were in the hills, killing people and it took the Yugoslav Army two years to finish them off.

General Clark told the Court that Milosevic's reference to killing Albanians as a solution to the crisis indicated to him that Milosevic had no intention of honoring the agreement to pull back his troops from Kosovo. As a further indication, the agreement was drafted with room for Milan Milutinovic, President of Serbia, and Momcilo Perisic, Chief of the General Staff of the VJ to sign, but there was no line for Milosevic’s signature. Only after Clark and Naumann insisted did he scrawl his name across the bottom.

MILOSEVIC SAW KOSOVO AS KEY TO HIS POLITICAL FUTURE

After the Racak massacre in January 1999, where 42 civilians were killed, Clark and Naumann met with Milosevic to try to get his agreement to let ICTY Prosecutor Louise Arbour investigate, which he had so far refused. They also wanted him to allow Ambassador William Walker, head of the OSCE verification mission, to remain in the country. His permission to be there was revoked after he visited Racak and denounced it as a massacre of civilians. The Serbs insisted the dead were KLA, killed in a firefight.

Milosevic was not cooperative. He said he was not going to comply with the agreements he’d signed, that he had 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.’ In other words, implying that he was not living up to his terms of the agreement and NATO would then invoke the ACTORD [activation order].”

Mr. Nice asked him, “Did you in your exchanges with the accused take a strong line, make reference generally to what he was doing to his country?” General 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 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 -- he said, ‘You are the war criminals.’”

General Clark told the Court that he tried to calm Milosevic down. He asked him about something Ambassador Holbrooke had recounted, that Milosevic had told him Kosovo was more important to him 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 it was the key to his political future. The two generals failed in their mission to have Racak investigated.

The witness also provided useful testimony about the pattern of military and police operations in Kosovo. “It seemed consistent with an earlier pattern that we had observed over the decade of the conflict in the former Yugoslavia. Namely that the military surrounds an objective, it blocks it, it prevents reinforcement or exit. The police then go through, they arrest people by name if they have particular information, that they search for. The paramilitaries then go in and threaten people and rob them and so forth, and then people are thrown out of their homes afterwards, all under the control of the authorities.” Based on his judgment as a soldier, he testified, “[It] [c]ould not have happened without the coordination of the VJ and the MUP, and based on what I'd seen of the army, it had to have happened with high-level command and control because this was still a disciplined force.”

COURT LIMITS SCOPE OF CROSS EXAMINATION

The Trial Chamber set strict parameters for General Clark’s testimony and cross examination. Where Milosevic is generally allowed to ask any relevant question, in this case he was restricted to the more common rule of cross examining only on matters raised in direct examination. The major potentially relevant area that was put off limits was the NATO air campaign. Clark did not give evidence against Milosevic on anything that happened after the war began, thus not opening the issue for cross examination.

At the beginning of cross examination, the Court took care to explain its limited scope to Milosevic. Judge Richard May assured the Accused he would be able to call witnesses and introduce evidence about the NATO air campaign, provided it was relevant, when it was his turn to present his case. The ruling prevented Milosevic from using the Prosecution’s dwindling time to present his defence. The Accused either had difficulty understanding the rule or accepting it, as he spent considerable time trying to raise issues that were off limits or arguing with Judge May about the procedure.

MILOSEVIC ATTACKS CLARK

Early on, Milosevic accused General Clark of being responsible for the deaths of his three colleagues who died when their vehicle ran off a road on Mt. Igman, Bosnia on their way to meet with President Izetbegovic. Clark and Holbrooke were in another vehicle and were unhurt. The incident followed Clark’s first meeting with Milosevic, as they attempted to lay the groundwork for Dayton. Before leaving that meeting, Holbrooke’s group asked for a guarantee of safe passage through Bosnian Serb checkpoints. After checking with Mladic, Milosevic said he was unable to provide 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 they weren’t given a guarantee of safe passage, addressing the Court (and not Milosevic) as he did throughout his testimony.

MILOSEVIC QUESTIONS LEGALITY OF NATO INTERVENTION

Judge May did allow Milosevic to question General Clark about NATO’s authority (or lack of it) for using military force against the FRY. Clark referred to Security Council Resolution 1199 and the delegation of Chapter 7 authority to NATO to use “all necessary means” to protect the civilian population by forcing the withdrawal of excess Serbian forces from Kosovo. Milosevic demanded, “General Clark, answer my question: Where does Resolution 1199 authorise you to use force? Are you claiming that you have a Security Council Resolution on the basis of which you waged war against Yugoslavia? Is that your assertion?”

Clark justified NATO intervention: “Your Honour, the accused brought to a state of acute crisis the humanitarian situation in the province of Kosovo. 350 to 400.000 . . . inhabitants were driven from their homes. They were forced to live in the woods. People perished in the extreme conditions outdoors. Artillery and heavy weapons were used against unarmed civilians. Key elements, including families, were eliminated during this period. In response to this, the UN Security Council Resolution did direct that humanitarian efforts be made. It authorised such efforts under UN Security Council Resolution 1199. Acting together, the North Atlantic Treaty Organisation issued to Serbia an activation order. It issued the activation order to its forces. It was to be applied against Serbia. The accused understands this very well. This is what he wanted to have lifted in the 15 October meeting. It was operative in bringing about a relief of the humanitarian situation, the crisis that he himself had directed to be caused by the activities of police and military forces in Kosovo against an essentially unarmed set of inhabitants in that province, the majority of inhabitants in that province. So the NATO action was constructive and in pursuit of a peaceful settlement of the issues there to enable the population to return to their homes. What was at issue here was whether or not the Serb forces and police would be reduced in compliance with the UN instructions or whether the accused and the elements of his chain of command would maintain excessive force in the province to use it and to use it directly and in intimidation against the inhabitants.”

Whether NATO acted lawfully in using military force against Serbia is not at issue in the case against Milosevic. Even if it were illegal, it could not justify ethnic cleansing or other crimes against the civilian population of Kosovo.

Similarly, the photograph Milosevic produced of a man, allegedly a KLA soldier, holding two severed heads said to be those of Serbs is not justified by any action of Serb forces against the KLA or Kosovar Albanian civilians. While it is not an issue in this case, the Prosecutor requested through the Court that Milosevic provide the Chief Prosecutor with the photographs so she may investigate for possible prosecution.

CLARK REFUSES TO ACKNOWLEDGE MILOSEVIC AS PEACEMAKER

Unlike some international interlocutors, General 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. Questions of peace, General. And that was in the interest of the whole people, and I enjoyed the support of the whole people with that respect. And we're talking of questions of peace here and nothing else.” A few minutes later, he asserted again, “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 realise that?”

Clark, however, provided the Court with a different view of Milosevic’s peacemaking. “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 -- of strategies using force, using intimidation, bullying, and then going to the international community and pursuing peace. It was this combination that marked his conduct during the entire period in question, and it was with knowledge of this combination of his skills and influence that we entered the discussions with the accused. 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. We knew that there were discussions. We knew that there were considerations, and we 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.”

CLARK REPLIES TO MILOSEVIC'S PARTING SHOT

Milosevic saved what he thought was his most damning accusation against General Clark until late in cross examination. He read from a November 17, 2003 New Yorker interview with General Hugh Shelton, Chairman of the 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 refers to General Clark’s current candidacy for the Democratic nomination for President of the United States.

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 NATO Secretary General Javier Solana during the Kosovo war. General Clark then read extensive and laudatory comments from Cohen, which 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 maximise civilian death and misery, you responded by minimising 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 Europe, following the Kosovo war. “In all candor, there was a policy difference between General Shelton and myself. “I believed that the United States and NATO could not prevent, could not -- sorry, 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 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.” Before Judge May cut him off for making an inappropriate comment, Milosevic said, “You caused a humanitarian catastrophe, General Clark. You didn't save anyone.”

But Clark had the last word, when the Court delayed the adjournment by a few minutes for a fax from former U.S. President Bill Clinton to arrive. The Court allowed Clark to read it 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.'

The Court then thanked General Clark for giving his testimony and told him he was free to go.