Command Responsibility -- Milosevic on Notice: Ashdown informed Accused of ethnic cleansing of villages

Lord Paddy Ashdown was the first witness to testify on one of the key elements that must be proven to establish Milosevic's guilt for war crimes and crimes against humanity – that he knew what was happening and failed to do anything to stop it.

In testimony that ran over two days, Lord Ashdown told the court about what he saw on several trips to the region in 1998. After his second visit in September, he met with then President Milosevic to deliver a letter from British Prime Minister Tony Blair and to tell Milosevic what he'd seen in Kosovo, putting him on notice that he considered it a violation of international law, for which Milosevic would be held responsible if he failed to stop it.

During his two days in Kosovo, Lord Ashdown reported seeing widespread burning and destruction of villages. Shops were destroyed, houses burned, livestock lay dead and bloated. In one hamlet, the entire store of grain for the next year's planting had been set on fire. In Prilep/Prejlep which was completely destroyed, he met an old woman and her daughter in the remains of their house. They came during the day to tend the farm animals, the old woman said. It was too dangerous to stay at night. Two men who had dared to do so were found the next morning with their throats cut.

Lord Ashdown also visited the site of an alleged KLA massacre of Serbs. Though the bodies had been removed, he testified that what he saw was consistent with a massacre by the KLA.

Accompanied by the British Ambassador, he continued on towards Suva Reka/Suhareke. The Ambassador had been assured by Milosevic that the fighting in the Drenica region had stopped. What they saw when they rounded the corner to Suva Reka exposed the lie. Every village in the valley was ablaze and were being bombarded by Serbian forces. Ashdown described his reaction and that of the Ambassador as 'deeply shocked.' The Ambassador immediately set up a satellite telephone and called the British Foreign Office to advise them that Milosevic's assurances were wrong. While the fighting in Drenica had stopped, it had moved on to Suva Reka. Ashdown testified that his conclusion, shared by the Ambassador, was that the burning and shelling were 'indiscriminate, systematic and of a nature to terrorize and drive out the civilian population.'

In addition to describing the military bombardment of Suva Reka in his meeting with Milosevic, Ashdown said he told of meeting a 'dreadful' convoy of refugees, including old men, women, children, babes in arms and a pregnant woman near term – all in the pouring rain. A video clip of this encounter was shown at the trial. The refugees reported that Serb forces told them if they didn't leave they would be subjected to bombardment. In his encounters with refugees, a pattern was beginning to emerge: first there were threats, then bombardment, next the Serb forces moved in to systematically loot the houses, followed by soldiers who burned them.

On the second day, Ashdown was accompanied by a UNHCR representative who led him to a group of 500 internally displaced persons who had been living in the woods for six weeks. Until UNHCR found them, they had mostly lived off cherries. When asked if they would return to their homes in winter, one woman said she would rather die of cold and starvation than submit herself to the care of Milosevic's government.

Before the meeting with Milosevic, the Ambassador obtained a legal opinion that these actions violated international law. Following presentation of Prime Minster Blair's letter in which he expressed 'a deep personal concern about the situation and said he was disturbed and perplexed by evidence of continuing hostilities and the rapidly developing humanitarian crisis,' Lord Ashdown confronted Milosevic with what he had seen and the conclusion that it violated international law. Milosevic denied it was happening. When Ashdown insisted he had seen it with his own eyes, Milosevic conceded it could be happening but only by rogue forces beyond his control. He nevertheless said he would take steps to stop it immediately and bring them to justice.

Lord 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 his 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.'

Emphasizing his impartiality, as he did throughout his testimony by harshly criticizing the KLA, Lord Ashdown read notes from his diary written 90 minutes after the meeting. 'Mr. President, you have been generous with your time and allowing me to come to your country. I shall have some harsh words to say about what I have seen, but I like the Serb people. . . . I beg you to stop this action which besmirches the reputation of your country. I also made clear his personal responsibility which could led to ICTY indictment.'

On cross examination, Milosevic never challenged the veracity of this conversation, though Judge May urged him repeatedly to question the witness about it rather than irrelevant issues – or the court would assume he agreed with Ashdown's report of the meeting. Instead, Milosevic tried to get the witness to address alleged war crimes by NATO, Britain and the KLA. He pressed Ashdown 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 or not was irrelevant because none of it justified what Milosevic and his forces had done. Speaking directly to Milosevic throughout, Lord Ashdown answered in one example, '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 it [NATO intervention] inevitable and I warned you that if you did you would end up in this court and here you are.'

Lord Ashdown's testimony provides the first and significant evidence to support the indictment's claim that Milosevic had command responsibility for all the acts and omissions committed by Serbian forces in the Kosovo war, including looting, burning houses, destroying civilian property and the means of livelihood and killing in an orchestrated effort to drive Albanians out of Kosovo. Mirroring the words of the statute, the indictment alleges:

'Slobodan Milosevic [and his co-accused]. . ., while holding positions of superior authority, are also individually criminally responsible for the acts or omissions of their subordinates, pursuant to Article 7(3) of the Statute of the Tribunal. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were 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.'

As Lord Ashdown concluded his testimony, 'The international community had been warning him [Milosevic] even before I arrived. I must presume he knew about it. But from the moment I informed him he could not deny knowledge. . . .'

It is now up to Milosevic to show that he took necessary and reasonable measures to punish the perpetrators and to prevent such acts in the future. From his questioning on cross examination, it appears he will present a written order prohibiting troops from violating international law, as well as several cases where individual soldiers were tried and punished. The greater challenge will be proving that the exodus of more than 800,000 Kosovar Albanians and the death of more than 10,000 of them were incidental to fighting terrorism and defending against NATO attack.

*KLA: Kosovo Liberation Army
**UNHCR: United Nations High Commissioner for Refugees
***ICTY: International Criminal Tribunal for the former Yugoslavia