Milosevic Cross Examines Genocide Expert

Not for the first time, Milosevic chose to address his audience at home rather than challenge the testimony of the Prosecution's witness. After questioning Dr. Ton Zwaan's qualifications to provide expert testimony on genocide, the Accused beleaguered him with questions about state crimes in Dutch history, but especially about mass killing of Serbs during World War II. Dr. Zwaan is a Dutch national. In addition to Dutch participation in the slave trade and exploitation of the East and West Indies, Milosevic accused The Netherlands of responsibility for apartheid in South Africa. Dr. Zwaan explained that The Netherlands had nothing to do with it. Apartheid was established by descendants of Dutch settlers.

As for Milosevic's assertions about genocide committed by the Croatian Ustashe against Serbs, Dr. Zwaan agreed that there were genocidal acts against the Serbs in WWII. He did not accept the numbers Milosevic said had been killed in Jasenovac, the infamous Ustashe concentration camp -- 600,000 - 700,000 Serbs, 30,000 Jews and Romanies -- even when Milosevic cited the Simon Wiesenthall Center as his source. Dr. Zwaan told the Court that the number is difficult to determine due to lack of records, but that a reasonable figure is 100,000 to 120,000 Serbs murdered there. While the horror and mass killings at Jasenovac are not in dispute, the numbers involved continue to give rise to bitter argument. Dr. Zwaan advised the Court that such longstanding disputes over numbers are not unusual in regard to genocidal acts. People profit from maximizing and minimizing the numbers, he concluded.

Milosevic also attempted to question the doctor about connections Alija Izetbegovic, former President of Bosnia-Herzegovina, allegedly had with the Waffen SS through a Muslim youth group he organized during WWII. The group was associated with the radical Mufti of Jerusalem who had called for a holy war against the Jews. Dr. Zwaan responded that the Mufti of Jerusalem was strongly anti-semitic and allied with Nazi Germany, but he was an exception in the Islamic world at the time. Pointing out that Milosevic had only cited instances of Croatian and Bosnian genocidal attacks, Dr. Zwaan suggested that “[maybe we should discuss] the dirt in front of your own door,” referring to a Serbian saying which Milosevic had mentioned earlier.

When the Prosecution asked Dr. Zwaan to prepare a report on genocide, they told him specifically to exclude the Balkans, though he has written and published about the wars in the former Yugoslavia in other contexts, to avoid any possibility of his commenting on a matter that is for the judges to decide, i.e. whether genocide occurred in Bosnia. Milosevic's questioning, which was irrelevant to the witness's testimony on the societal indicators of genocide and mass killing, opened the door for Prosecutor Geoffrey Nice to question Dr. Zwaan about the application of genocide theory to the recent Yugoslav wars on re-examination.

Except for a final conclusion, Dr. Zwaan was not particularly helpful, responding for the most part that he had not studied the situation in the former Yugoslavia for his testimony. Judge Robinson apparently had difficulty believing he had prepared his report without considering Bosnia. When the Judge asked the expert if he might have subconsciously written his report with Bosnia in mind, Dr. Zwaan replied that he could not talk about his own subconscious. Judge Robinson pressed him, “You’re aware of what happened in Bosnia and know the characteristics of that situation. It would diminish the quality of your report if it were tailored to meet these characteristics.”

On re-examination, Mr. Nice asked the witness directly, 'Is there any question of your tailoring your report to lead to conclusions about Bosnia?' The Prosecutor went on to explain, “Tailoring would be writing a report that leaned toward characteristics found in one setting not found in another. Is there anything in the Bosnian situation that is eccentric or different from others that would lead to different conclusions?” Dr. Zwaan declined to speculate, insisting that he had not studied the situation in Bosnia, but had provided the Court with general tools of analysis.

The report, which has been introduced into evidence, provides a summary overview of the general consensus of sociologists, historians and other relevant professional disciplines about the characteristics of genocide or similar mass crimes. They are: genocide and mass crimes targeting particular groups are distinct from war and civil war; they only develop in situations of ongoing crisis; decisions of political elites are of decisive importance for the emergence of genocide; genocides are highly complex processes, consisting of different stages which can only be ended by forceful outside intervention; ideology is of crucial importance for genocide to emerge; and every genocidal process should be considered from the perspective of the victims.

Rather than challenging these characteristics, Milosevic spent considerable time pointing out that they had nothing to do with the legal definition of genocide. That was not at issue. The Court does not need an outside expert to inform it about the law on genocide. That is a matter for the parties to present to the Court through legal briefs and argument. Milosevic has ignored this role and responsibility of counsel, which may have led to his confusion about the role of Dr. Zwaan, if indeed he was confused.

When Milosevic did turn to the expert report’s characteristics of a genocidal context, he focused on an apparent contradiction in the report. In attempting to distinguish war and civil war from genocide, Dr. Zwaan wrote “Civil war implies a violent conflict between two or more armed and organized parties. . . . [D]uring genocides one party – the persecutors and perpetrators – is armed and organized to use force, while the other party – the persecuted and victims – is not armed nor organized to use force.” Milosevic then asked, “Can one infer from your report, in a civil war similar to the one in Bosnia-Herzegovina, the preconditions for genocide didn’t exist as all the parties had military force?”

Dr. Zwaan seemed taken off guard by Milosevic’s conclusion and gave a confusing answer. Earlier, he had stated that genocidal acts can occur in wars and civil wars. Indeed, the genocide of the Jews occurred in the context of war, though the war was not fought between the Jews and Nazi Germany. Moreover, on re-examination, the witness reiterated that it is possible for mass crimes or genocide to occur in a multi-sided conflict. It is not possible, he asserted, to commit genocide against an armed people or combatants – unless they are first disarmed.

Stepping fully through the door that Milosevic had opened for him, Mr. Nice asked the witness about Milosevic’s assertion that the preconditions for genocide or mass crime against a group didn’t exist in the territory of the former Yugoslavia. Dr.Zwaan replied, “That is not the case. They did exist.”

Judge Robinson interrupted, “You said they [the preconditions] did exist but I recall that you said you did not concentrate on circumstances in Bosnia-Herzegovina. Your report does not deal with Bosnia-Herzegovina, but I hear you giving an answer that deals specifically with Bosnia-Herzegovina.” Dr. Zwaan assured Judge Robinson there was no contradiction. He had merely answered questions the Accused’s and Mr. Nice’s questions about Bosnia, but “that doesn’t mean I wrote the report with Bosnia in mind.”

Amicus Steven Kay, in a precisely crafted cross examination, obtained the witness's agreement that those who intentionally initiate fragmentation and disintegration of a state may lose control of a dynamic that carries all parties to 'an uncertain outcome and future.' With Bosnia in mind, one might conclude that the ethnic cleansing got out of hand resulting in massacres and mass killing -- but without any intent of the leadership. On re-examination, however, Dr. Zwaan reiterated that unforeseen events from disintegration do not include genocide which is not a naturally occurring phenomenon.

While Dr. Zwaan's report may be helpful for conceptualizing societal conditions that gave rise to genocide or mass killings targeting Bosnian Muslims, the judges will determine whether genocide occurred there based on the legal definition of that crime.