Institute for War and Peace Reporting | Giving Voice, Driving Change

Milosevic Counsel Debut

Defendant’s new defence lawyers try to make the best of a bad job.
By Ana Uzelac

Former Yugoslav president Slobodan Milosevic resentfully took a back seat in his own trial this week, as the two British lawyers assigned to him by the court questioned the first defence witnesses.

Steven Kay and Gillian Higgins began their defence in the biggest war crimes case since the Second World War with little more to go on than the witness list Milosevic filed several months ago.

According to Kay, Milosevic has repeatedly refused to meet them since their recent assignment to the case, and has not instructed them on his strategy and the line of questioning they should take.

The counsels announced they had tried to deduce what Milosevic envisaged as his defence from his opening statement, his cross-examination of prosecution witnesses and the list of witnesses he filed, and are now following the line they assume he would have chosen as well.

To this effect, they have bizarrely asked for and received leave from the judges to file an appeal against their own appointment, following a request made by Milosevic in the courtroom last week.

The first witnesses to take the stand this week hinted at the adoption of a political defence strategy a tactic that observers had predicted the former Yugoslav president would choose.

Milosevic had announced he was planning to show that it was western countries that bore responsibility for the destruction of former Yugoslavia, and this week’s witnesses seemed to share some of those beliefs.

But by the end of the week, the defence announced it faced “witness problems”, as two of those scheduled for next week refused to appear - both citing the trial chamber’s decision to impose counsel as the reason.

The news prompted the presiding judge Patrick Robinson of Jamaica to warn Milosevic that he “would have to bear responsibility” if evidence vital to his defence was not heard as a result of his non-cooperation.

The first witness to take stand this week was Milosevic’s former legal advisor and law school professor Smilja Avramov, who served as a negotiator during his years in power. She participated in talks with other former Yugoslav republics and European Union representatives in the months before and after the break-up of Yugoslavia.

Casting Milosevic as “a peacemaker”, Avramov testified that during the various negotiations she participated in, it had never been Milosevic’s plan to destroy Yugoslavia. “On the contrary,” she said, “he was obsessed with keeping it alive” - even long after its two western republics, Slovenia and Croatia, declared independence.

“He never imagined anything beyond Yugoslavia,” she said, but later conceded Milosevic had allowed the possibility of recognising Slovenian and Croatian independence - under the condition that the Serbs living in Croatia would get “the right to stay in Yugoslavia”.

While trying to refute the prosecution’s allegations that the defendant had in fact wanted to create a “Greater Serbia”, Avramov admitted that in Milosevic’s view the recognition of these republics’ independence would include revision of borders.

“The platform [of the negotiating teams under his lead] was that we negotiate, but the issue of borders remains open,” she said.

Avramov also tried to disprove that Milosevic had had much influence on the Serbs’ political leaders in Bosnia and Croatia. She described former Croatian Serb leader Milan Babic as an “extravagant and self-assured person” who refused all offers made by the former Yugoslav president. Babic was recently sentenced by the Hague tribunal for crimes committed against Croats during the years of his rule on the territories under Serb control.

Milosevic had even less influence with the Bosnian Serbs, Avramov claimed.

Their leader Radovan Karadzic - one of the tribunal’s most-wanted fugitives - was “a great intellectual with high personal moral authority” who had “an authority above all others” among Bosnian Serbs and considered himself to be Milosevic’s equal, Avramov told the court.

The witness later conceded that, at the end of the war, Karadzic yielded to Milosevic and renounced his role as a negotiator for the Bosnian Serbs during the Dayton peace talks, but did so “with a heavy heart”.

It is the exact nature of the relationship between Milosevic and the Bosnian Serb leadership that lies at the heart of the most serious charge the defendant is facing - that of genocide in Bosnia.

The former Yugoslav president is facing three indictments covering wars in Croatia, Bosnia and Kosovo respectively. Together they contain 66 counts of war crimes, crimes against humanity and genocide.

The other witness this week was James Jatras, a former US Senate analyst for the Republican Party, and the author of several reports describing the various aspects of the US policy towards former Yugoslavia.

Jatras acknowledged that all he could offer to the court was his “view as an analyst”, since his reports and analysis were based almost exclusively on public sources.

The largest part of his testimony was dedicated to the issue of Iranian arms supplies to Bosnia. The issue first came to public attention after stories were published in the American press about how consignments of Iranian weaponry went to Bosnia through Croatia during the war, in violation of a UN arms embargo.

The US Congress, after intensive debate, allowed the shipments to go ahead and no action was taken against those involved.

This week’s hearing turned the spotlight on this old episode, but the defence was unable to produce any new evidence.

Jatras also insisted that, at the time, both Democrats and Republicans turned a blind eye to the influences of other Islamic countries on Bosnia, and what he described in one of his reports as the “radical Islamic character of Sarajevo regime”.

Jatras also told the court that, based on evidence from his contacts in the Senate in the summer of 1998, it became “clear to [him] as an analyst” that the US administration under former president Bill Clinton had “a pre-designed plan to attack Serbia” six months before the actual NATO bombardment began, and was waiting for a suitable excuse to do so.

“I had it on a good authority form a confidential source that a senior US official during the negotiations [about the future of Kosovo] in Rambouillet said the US had ‘deliberately set the bar too high for the Serb delegation. They need some bombing, and they are going to get it’,” Jatras alleged.

But the defence failed to produce further concrete proof of the existence of such US policy. In any case, it is unclear what bearing such information would have on the Milosevic case, as he is accused of command responsibility for a range of crimes committed by Yugoslav troops against Albanian civilians in Kosovo after the NATO bombardments already began.

During the long cross-examination, the prosecution tried to stress the lack of factual information the witness could provide and then to cast doubt on his analytical skills, by showing his affiliation with a strongly anti-Islamic stream within the Greek Orthodox community in the US.

Prosecutor Geoffrey Nice quoted from a theological essay written by Jatras, published in a US Greek Orthodox newspaper, in which he called Islam a “gigantic Christian-killing machine”.

When Milosevic asked to address the court, he attacked his lawyers for “wasting” the whole week on just two witnesses, when he had a list of 1,631 of them to question and only 150 days to do so.

Somewhat exasperated, and with the first traces of irritation showing, Kay tried to “set the record straight” by saying Milosevic himself had planned to question only three witnesses this week, and since the third one refused to appear, he was keeping pace with the schedule envisaged by his client.

During the course of the week’s hearings, Milosevic used every opportunity presented to him to accuse the tribunal of depriving him of his right to self-defence, and to lash out at his new counsels.

“You took away my right to defend myself and put it into the hands of Mr Kay here who does not represent me. He represents you,” he said on the very first day, before the presiding judge turned his microphone off.

“Mr Milosevic, I will not hear the same tired refrain again,” Patrick Robinson said. But similar exchanges nevertheless continued on a regular basis, creating a new kind of routine for the trial.

The judges occasionally gave Milosevic the chance to address the chamber, which he would then use to denounce his new legal team for “watering down” his defence, “wasting time” and “asking the wrong questions”. He would then try to raise the topic of his right to self-defence and end up having his microphone turned off.

The court decided to assign defence counsel to the former Yugoslav president after his continuing health problems effectively brought the trial to a standstill this summer.

While the trial chamber judged that Milosevic’s health did not allow him to defend himself anymore, the court still allows him the opportunity to participate in his defence by helping counsel prepare the witnesses for questioning and permitting him to ask his own questions.

Milosevic has refused both options and continued to do so during the hearings this week.

On September 10, Kay announced that two witnesses scheduled for next week have declined to appear - an unnamed Canadian scholar and the former Russian deputy Nikolay Ryzhkov. The latter publicly cited the appointment of counsel as the prime reason for his refusal to attend. At least one of them, Kay suggested, changed his mind about appearing in the court after having spoken to Milosevic on the phone.

This prompted the chamber to sternly warn Milosevic about the responsibility he bears for preventing the evidence in his case be heard.

The presiding judge reminded Milosevic again that he is being encouraged to participate in his case. “If this opportunity … is not grasped, … the trial will nonetheless proceed, and none can say there was injustice,” he warned.

Ana Uzelac is IWPR’s project manager in The Hague.