Expert Says Milosevic Had Command Responsibility, While Judges Question Expert's Credentials

A police expert from Serbia, Dr. Budimir Babovic, presented his analysis and conclusions to the Court: Slobodan Milosevic had de jure (legal) control over the Serbian police from 1989 through his ouster from office in 2000. Under his command, the Serbian police were militarized, i.e. they were given military rank, military weapons and military training. “In a single day, Milosevic awarded the rank of general to approximately fifteen men. . . .” The head of Public Security in the Ministry of Interior was promoted from lieutenant to colonel general, “thus becoming equal in rank to the Chief of the VJ (Yugoslav Army) General Staff.” Constituting 150,000 personnel in 1997, the Serbian police (MUP) acted as Milosevic’s private army.

Milosevic’s de jure power came from various sources. Early on, under one-party rule, Milosevic was President of the League of Communists of Serbia, with power over all levers of authority. Then, as President of Serbia, he drew power over the police from the Serbian Constitution (revised in 1991) and laws. When he became president of the Federal Republic of Yugoslavia (FRY) in 1997, “He retained undiminished real power and acquired constitutional and legal authority, because, as FRY President, he became the ex officio president of the Supreme Defence Council. In this capacity, he had legal authority over the police forces in peace and war,” Dr. Babovic wrote.

Milosevic was behind the constitutional and legal changes, as well as executive decrees, that assured him de jure power in whatever position he held. According to Dr. Babovic, “Analysis has shown that de jure authority represented no boundary for Milosevic’s actions. When he found it inconvenient, he would disregard it in practice or change it by issuing decrees or decisions.”

By secret decree in 1997, Milosevic established a direct link between himself as president of Serbia and the heads of the two departments of the Ministry of Internal Affairs (Public Security and State Security), thus bypassing the Government’s Minister of Internal Affairs. When he became FRY president a few months later, “the highest MUPS [Ministry of the Interior of Serbia] officials continued reporting directly to Milosevic. . . .”

Dr. Babovic also found that, contrary to law, the Serbian MUP operated outside Serbia as early as 1989. He goes on to say, “When the fighting started, it was evident that MUPS members were operating outside Serbia.” Dr. Babovic based his conclusion, in part, on a certificate showing that “a MUPS member was a commanding officer of the territorial defence units of Slavonia, Baranja and Western Srem,” in Croatia in 1991. He also cited a July 10, 1995 order indicating that Serbian MUP forces joined Croatian and Bosnian Serb MUP forces “in combat operations at the Sarajevo front” and to go to Srebrenica.

As many other witnesses have testified, Dr. Babovic also concluded, “The Serbian police’s engagement outside Serbia most frequently came in the form of para-statal formations [paramilitary and para-police].” An important reason for this, he says, is the widespread draft resistance among Serbian young men. He sets out yet another reason, “For Serbia, acting through paramilitary formations was a solution for ‘war without war’, and the persistently repeated claim that Serbia was not at war.”

According to the expert report, in mid-1990, the Serbian DB (State Security Service of the MUP) sent two operatives (Radovan Stojcic, aka “Badza”, and Franko Simatovic, aka “Frenki”) “to infiltrate Knin under false names and begin preparations for an armed insurrection by the Serbs.” In other words, Milosevic’s State Security Service was involved in starting the war in Croatia. This was followed by the establishment of several paramilitary organizations, such as Arkan’s Volunteer Guard (aka “Tigers”), Vuk Draskovic’s Serbian Guard and Mirko Jovic’s White Eagles. Corroborated by earlier testimony from members of some of these paramilitary units themselves, Dr. Babovic wrote, “Training, outfitting and arming took place in Bubanj Potok, near Belgrade. The whole operation was supported by the then Serbian Ministry of Defence. The minister, Tomislav Simovic, later said that he had been convinced that a new Serbian army was actually being set up.”

Dr. Babovic describes the DB’s establishment of its own unit, the Red Berets, on May 4, 1991. Initially called the Unit for Anti-Terrorist Operations, later the Special Operations Unit (JSO), it began with 57 members, but grew to nearly 600. The nucleus, according to DB Special Operations Chief, Franko Simatovic, continued to be members of the Serbian MUP’s DB. Simatovic also spoke (on videotape played in Court some time ago) about many of the places the Red Berets had fought in both Croatia and Bosnia.

The Expert Report also addresses the Serbian MUP’s relationship to the Federal MUP. From 1992 to 2000, the Federal MUP was a de facto branch of the Serbian MUP. Dr. Babovic describes how the Serbian police physically destroyed the Federal police, occupying the Federal MUP building by force on October 19, 1992. “The Serbian MUP’s operation to take over the Federal MUP was not based on any law. A special unit of the Serbian MUP entered the SMUP building late in the evening and occupied the premises. . . . Employees were asked to sign a special oath of loyalty to the Serbian MUP. Those who refused lost their jobs.”

These and other examples cited by Dr. Babovic as well as his explanation of Serbian and Federal law and constitutional provisions provide support for his conclusions, which include:

“[T]he greatest responsibility for the most important decisions regarding the operations and conduct of the police lies with Milosevic.”

“[T]he Serbian MUP operated outside Serbia, either directly, or through its own para-state formation.”

“[T]he para-state formation established by the SDB MUPS [Serbian State Security] committed crimes in the areas engulfed by war.”

“Milosevic knew of the operations of the para-state formation and other MUP forces (“I read those reports of yours”, he said to the JSO leader) and that he approved of them (“thank you”, he said to F. Simatovic, aka Frenki), but that there is no proof that he asked for unlawful activities to be corrected.” [The Court saw Milosevic’s admissions on videotape.]

And finally, “it is impossible not to raise the issue of Slobodan Milosevic’s command responsibility. . . .” In testimony, Dr. Babovic assured the Court that he was not attempting to usurp its role by drawing this conclusion. Rather than a legal conclusion, it is the way a policeman would look at the issue based on the hierarchy of command.

The report is strong evidence of Milosevic’s de jure command responsibility. However, at least two judges of the three-member Chamber questioned Dr. Babovic’s credentials for making what they considered legal analysis. That’s what lawyers train for, they seemed to be saying, and Dr. Babovic is not a lawyer. Rather modestly, Dr. Babovic, who made his report at the invitation of the prosecution, explained that he has a doctorate in political science, has studied law and headed the Yugoslav Interpol office for eight years. He has also written widely on the subject of police in society, including two recent books, “The Police and World Order” (1997) and “Human Rights and Police in Yugoslavia” (1999 and 2001). Judge Robinson seemed particularly unimpressed. When Dr. Babovic explained that the Serbian Constitutional Court had recently delivered an opinion similar to his analysis, Judge Robinson chastised him. The colloquy follows:

Dr. Babovic (answering the prosecutor’s question): “The decision [of the Serbian Constitutional Court] is not identical with my analysis, but basically it doesn’t differ in the least. [He explained that the Constitutional Court ruled an act unconstitutional because it sought to regulate matters that can only be regulated by the constitution, which was substantially his own position. The act sought to give the Serbian president power to bestow ranks and awards, not permissible under the Constitution.]

Judge Robinson: “You say the Constitutional Court didn’t accept the approach you had. Who’s view should this Court accept? I would rather accept that of the Constitutional Court. You are a social scientist. This is a legal issue. The Constitutional Court agreed with your position in one respect and in another it did not.”

Dr. Babovic responded that he wasn’t suggesting the Trial Chamber should in any way accept his judgment over that of the Constitutional Court. He reiterated what Judge Robinson seemed not to have heard the first time, that the Constitutional Court “did accept what was essential” in his analysis.

Milosevic was quick to focus a substantial part of his cross examination on Dr. Babovic’s credentials, disparagingly referring to him as a “French teacher” because his undergraduate degree was in French language and literature. Dr. Babovic, for his part, was self-effacing as well as resentful of the rude treatment he was receiving. When Milosevic demanded whether he considered himself an expert, he replied simply, “Others do. I would be immodest to say I do.” The badgering and humiliation had an effect, however, as Dr. Babovic answered Milosevic’s questions with curt responses such as “I said what I had to say.” The result was that he appeared to know less than he obviously did (based on a reading of his report).

This is the second expert witness whose expertise and objectivity the judges have questioned. The first was Dr. Ivan Kristan, a constitutional law expert and former judge of the Socialist Federal Republic of Yugoslavia Constitutional Court. The Chamber disallowed part of his evidence related to an opinion he expressed while on the Constitutional Court, concerning Serbia's removal of Kosovo's autonomous status. [See CIJ Report of 23 May 2003, 'Court Finds Former Constitutional Court Judge Not Sufficiently Disinterested.'] Yet another expert, Dr. Renaud de la Brosse performed poorly in Court, despite his well-considered report on propaganda.

If witnesses are used to testifying in a civil law system (and all three experts running into problems with the judges have been), they may be ill prepared for the more adversarial ICTY proceedings. In this case, witness preparation for what to expect in court is critical. He must consider how he will respond when his professional credentials are questioned – whether by the Accused or the Court. If he has not, he may feel insulted and become defensive, or, as in the case of Dr. de la Brosse, he may become unsure of himself and appear to question his own expertise or conclusions.

The Court's concerns about Dr. Babovic and Dr. Kristan likely have to do with the fact that their areas of expertise are legal or law-related. While none of the judges is an expert in SFRY or Serbian constitutional law, they obviously have legal expertise. That perhaps causes them to impose a higher standard for other law-related experts.

For whatever reason, the Prosecution is having trouble with its experts. In the case of Dr. Babovic, while the Court may not reject his analysis and conclusions entirely, they may well give them less weight than they deserve. Considering that they provide significant support for Milosevic having command responsibility over the Serbian police throughout its wartime adventures, this is a serious development. It remains to be seen how the Prosecution, and ultimately the Court, will address it.