Is History Relevant? The Drenica Uproar: Milosevic to Naumann: We'll line them up and shoot them

The prosecution team in the Milosevic trial recently submitted a 90-page expert witness statement on the development of Serbian nationalism in the twentieth century. Milosevic is likely to cross-examine the historian who wrote the report rather than accept it without challenge – he has either option - but not because he sees history as irrelevant to his case. In fact, he has already cited information contained in the report in his own defense, covering his bases by saying the study was 'otherwise incompetent.' Milosevic and the team prosecuting him are in unusual agreement on the historical front; both sides are attempting to convince a reluctant court that understanding history is essential to understanding the specific charges before the judges.

Judge May has stated in recent exchanges with the prosecution that no more 'historical overview' evidence about Kosovo should be submitted. Instead, the court has indicated that the most convincing and relevant witnesses will be survivors of attacks and officials who can testify to Milosovic's approval or knowledge of such attacks. The prosecution insists that it is impossible to understand the scope and purpose of the alleged crimes without greater knowledge of the historical circumstances in which they arose. For his part, Milosevic regularly offers mini-lectures to the court on topics ranging from the 1648 Peace of Westphalia (establishing principles of territorial integrity and the sovereignty of nation-states), to the post-WWI drawing of national borders in the Balkans.

This would all be very unusual in most domestic criminal trials, where evidence not bearing on the specific acts and motivations of the defendant is generally not permitted. The tension between the need to understand the Balkan conflicts in context and the desire to remain focused on the specific charges in the indictment recently came to a head during the June 13 testimony of Klaus Naumann, a German general and previously NATO's highest ranking military official. In the fall and winter of 1998-1999, General Naumann met with Milosevic in Belgrade three times in order to attempt to improve the deteriorating Kosovo situation, as well as to explicitly threaten Milosevic with NATO military action. Naumann testified that during the second meeting, Milosevic discussed finding a solution to the 'Kosovo problem' that would result in an ethnic balance and address the high reproduction rates of ethnic Albanians. When pressed by Naumann about his solution to Kosovo's problems, Milosevic allegedly claimed that his regime would solve them in the same way as had happened in Drenica after WWII – 'we'll get them together and shoot them.' The Drenica region of Kosovo is considered the crucible of Albanian resistance to Slavic rule, and saw intense fighting between Albanians and Serbs after WWII, as Kosovo was reincorporated into a Serbian state after having been part of Italian-ruled Albania.

Although this testimony created an immediate stir in the courtroom, Milosevic did not challenge it at the beginning of his cross-examination. Instead, he attempted to confront Naumann about Germany's alleged historical goal of destroying Yugoslav unity, a line of questioning the court refused to permit. This is typical of Milosevic's cross-examinations, which often fail to address core aspects of the witnesses' testimony, focusing instead on a limited repertoire of political and historical themes to which the witnesses often cannot respond. In this case, Naumann had been acting for NATO, not for his country of birth, and Germany's past dealings in the Balkans had nothing to do with what Naumann individually saw or knew about Kosovo in 1998-99 in his official capacity. Judge May repeatedly threatened to end Milosevic's cross-examination prematurely unless relevant questions were formulated.

The judge's frustration was no doubt linked to the fact that this was not the first time Milosevic had used historical events completely unrelated to the trial to condemn individual witnesses. The day before, he had accused American ambassador William Walker of improper behavior during his tenure as U.S. ambassador to El Salvador from 1988 to 1992. Despite Milosevic's insistence, it was unclear to the court and to observers how Walker's response to events such as the killing of 6 Jesuits by the Salvadoran military in 1989 could discredit his descriptions of his experiences as head of the Kosovo Verification Mission, a fact-finding body created by the Organization for Cooperation and Security in Europe (OSCE) to monitor the Kosovo situation in 1998-99. Judge May called this line of questioning a waste of time.

Certainly Milosevic has used both personal and national histories poorly; he attempted to discredit both Walker and Naumann based on their nationalities and their proximity to events that occurred long ago and with no relationship to the indictment. Meanwhile, condemning evidence like the Drenica statement has gone substantially unchallenged. At one point during the cross-examination, Judge Robinson interrupted and directly asked Naumann about the Drenica statement, saying it could be 'essential.' Naumann reconfirmed what he had heard. Milosevic's response was that 'even a small child' could see the absurdity of Naumann's claim; such a statement would not reflect what happened historically, and would be criminal and illogical. This, of course, is exactly the point. The Drenica comment, if not refuted, could be key in establishing the mens rea, or criminal intent or state of mind, that will be necessary to prove the charges against Milosevic.

In court, it seemed that Milosevic was trying to say that his comment about shooting Albanians referred only to military resistance, not civilian. He also seemed to assume that the events in Drenica over 50 years ago supported this interpretation, and that the parallel should be clear to everyone. It is not clear to everyone, and neither Naumann nor the judges are historians. Moreover, even if the court ultimately accepts that Milosevic only intended his statement to refer to armed resistance fighters, any round-up and execution of such fighters would still constitute a war crime. In armed conflict, the killing of combatants is illegal if they have been captured or have surrendered, or if disproportionate force is used. As testified to by Naumann, Milosevic's Drenica statement is evidence of an intent to commit violations of the laws or customs of war. Milosevic, who said Naumann's understanding was counter-historical, nonetheless failed to explain the connotations that might justify his comment, if it is indeed justifiable.

Milosevic will, of course, have a chance to present his own evidence about the statement, its historical meaning, and his intent, when the trial moves into the defense phase. Much depends on his understanding of what happened in Drenica over 50 years ago, and how he intended his statement to mirror or diverge from that understanding. To convincingly counter Naumann's testimony, Milosevic will have to marshal evidence in a way that is meaningful, rather than simply insisting that everyone accept as truth his interpretations of his own comments. Judge May has said that whatever happened in Drenica is irrelevant at this stage of the proceedings; all that matters is what Naumann heard. After misusing historical evidence for much of the trial, Milosevic will face the task of convincing the court to listen in a situation where history is not just relevant, but necessary to his defense.