Milosevic Defence Struggles On

Friday, 18 November, 2005

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Ana Uzelac

A year after it was first scheduled to start, the defence case of the former Yugoslav president Slobodan Milosevic has been adjourned this week in the Hague for a three-week summer recess, leaving observers struggling to establish whether the defendant has managed to refute any of the numerous charges against him.

The former Yugoslav president is facing charges of war crimes, crimes against humanity and genocide for his role in the wars that engulfed the Balkans in the Nineties. He is accused of setting up and orchestrating an attempt to carve ethnically pure Serb territories out of the former Yugoslavia - an operation that resulted in over hundred thousand deaths and millions of displaced people throughout the region.

The charges are contained in thee separate indictments, covering wars in Croatia, Bosnia and Kosovo respectively.

The defence case is now entering its second year, and the first two months were taken up with Milosevic and his assigned counsel Steven Kay fighting the judges’ decision to take the day-to-day running of the case away from the defendant. Following an appeal, Milosevic has been in charge of his own case since November last year.

But as he was preparing to wind down his defence this week prior to the recess, prosecutors asked the judge to allow them to re-open their case in order to introduce fresh evidence against him.

The new evidence that has come into their possession, they say, may strengthen the Kosovo and Bosnia charges, proving alleged Yugoslav army involvement in the shelling of the Albanian village of Racak in January 1999 and making a direct connection between Milosevic and the Srebrenica massacre in July 1995.

They are asking for the introduction of one new witness in the Kosovo case and for the inclusion in the Bosnia case of a video showing an allegedly Belgrade-run paramilitary unit executing six Bosnian Muslims. With the latter, they are also asking for several witnesses to be heard, to help authenticate the tape and show the connection between the executions and the accused.

This new offensive by the Hague prosecutors comes nine months into Milosevic’s battle against the charges contained in the indictment pertaining to the war in Kosovo in 1999. He has yet to address the two remaining indictments, covering the wars in Bosnia and Croatia.

Milosevic is accused of orchestrating an operation to expel 800,000 Kosovo Albanians from the province. Accompanied by a campaign of murder, rape and looting, the action coincided with the NATO air strikes on Serbia in the spring of 1999.

The indictment lists 17 documented cases of mass murder and 22 cases of mass expulsions.

Many observers note that the nine months that have passed since Milosevic regained control over his defence case in November last year haven’t been very successful in bringing the fresh information that could cast doubt on the prosecutors’ allegations against him.

“We have heard a lot during the last nine months: about the importance of Kosovo for the Serbs, about the political games played around it, about the existence and the scale of the Albanian insurgency there,” said Heikelina Verrijn Stuart, Dutch lawyer and a long-term observer of the Milosevic trial. “But I haven’t heard anything really new about the concrete allegations contained in the prosecution’s case.”

Many among the 30-odd defence witnesses that have passed through the Hague tribunal’s courtroom were once high-ranking Serbian and international politicians. Others were mid-ranking insiders, belonging to the inner circles of Milosevic’s political and security advisers and executives during the Kosovo crisis.

In his defence, Milosevic is combining two basic tactics, says Edgar Chen, the liaison officer for the Coalition for International Justice in The Hague, “He tries to punch holes in some charges, while trying at the same time to build an alternative case to account for the events mentioned in the indictments.”

The main line of this alternative case is that there was never a political and criminal conspiracy to expel the Albanians form Kosovo, as prosecutors allege, but that the Yugoslav government only acted to defend the country from an aggression by NATO forces and an attempt by Albanian insurgents to gain control over the province.

The mass exodus of Kosovo Albanians was caused by NATO bombs, rather than by concerted attempt by the Serbian security forces to expel them; crimes against civilians were not part of a strategy to intimidate them, but unfortunate incidents – and those that the army or police officers found out about were duly prosecuted.

Key witnesses that Milosevic hoped would help him build this case featured academician Mihajlo Markovic, who once shaped the ideological platform of Serbia’s former ruling Socialist Party; his former foreign minister Vladislav Jovanovic; the former Russian prime minister Yevgeny Primakov; the former Russian defence minister Leonid Ivashov; Serbian deputy interior minister Obrad Stevanovic; and and the former commander of one of the biggest army units in Kosovo, General Bozidar Delic.

The first several witnesses testified at length about the background of the indictment, and the international circumstances in which the former Yugoslavia fell apart, laying neatly the blame for the wars on everyone other than the accused.

Only at the very end of January this year did Milosevic finally begin to address some of the concrete charges that figure in the Kosovo indictment – spending most of the time on trying to disprove the prosecutors’ take on the Racak case, the first case of mass murder listed in the document.

In mid-January 1999, Serbian security forces attacked the village. In the aftermath, over 40 bodies were found there, some of them appearing to have been shot at point-blank range.

The attack forced the international community to seek an immediate political solution for the simmering Kosovo problem – and when this failed in February that year, NATO opted for a military operation against Belgrade.

Racak is seen both by Milosevic and by the prosecutors as a pivotal case – for the prosecutors it shows that even before the NATO air strikes Milosevic was prone to committing crimes in Kosovo of a kind that would become standard in the following months. For Milosevic, however, Racak was a set-up, and the ultimate proof of an international conspiracy to break up his country and overthrow him.

So far, Milosevic has spent over two months in court trying to disprove the charges relating to Racak, claiming the people killed there were Albanian insurgents, who died in battle – not civilians shot at close range.

He went about this by bringing amongst others the investigative judge Danica Marinkovic, and the chief state pathologist in Kosovo Slavisa Dobricanain - both closely involved in the official Serbian state investigation into the massacre - to testify about their findings.

Later, Milosevic brought local police inspector Dragan Jasovic to testify about the investigation he conducted in the aftermath of Racak, which showed that at least 30 out of some 45 victims listed in the indictment were tipped off to the Serbian police as insurgents by “friendly sources”, “informants” or simply fellow villagers.

But the credibility of one witness after another seemed to dissolve under cross-examination, as prosecutors sought to show the unreliability of the forensic methods used by the Serbian police and the incomplete nature of their investigative work.

The methods that the Serbian pathologists used to establish the presence of gun powder on dead people’s hands - and later brand them as active combatants rather than civilians - were shown to have been discarded as unreliable by their European colleagues decades ago; Marinkovic was shown to have failed to interview witnesses or survivors of the massacre; and Milosevic’s insisting that the people killed were Albanian fighters couldn’t counter forensic evidence presented earlier in the case, which showed that many were killed at such close range as to suggest they were unarmed at the time of their death.

The credibility of Jasovic was dismantled in a two-week cross-examination, during which prosecutors came up with testimonies and written evidence suggesting he extorted testimonies under duress, including torture by electrical shocks.

In the last two months of his case, Milosevic moved away from Racak and brought a series of mid-ranking insider witnesses, all of whom were, according to Bogdan Ivanisevic, Human Rights Watch researcher in the Balkans, “superbly relevant to the case”.

Police officer Radomir Paponjak, Stevanovic and Delic, all spent weeks on the witness stand. Their testimonies were aimed at both showing that the Yugoslav forces had a system in place to ensure that crimes committed would be prosecuted, and at the same time to counter allegations of several concrete incidents contained in the indictment.

“It would be almost impossible to find more relevant witnesses for his case,” said Ivanisevic.

But the credibility of all of those witnesses was seriously shaken under cross-examination – and some of them even ended up inadvertently strengthening the prosecutors’ case.

During the cross-examination of Stevanovic, for example, he unintentionally brought to the light evidence strengthening the prosecutors’ version of an alleged massacre of Albanian inmates at the Dubrava prison in May 1999.

Stevanovic told the court that a special unit under his command came to the Dubrava prison in May 1999 - at the very time when the witnesses in the prosecution case claimed Dubrava’s Albanian-only inmates were executed by policemen who came from outside the jail.

He also reluctantly admitted the authenticity of his war diary, where during one of the meetings with Milosevic he jotted down a chilling note, “President: no corpse, no crime.” He first tried to deny and later accepted that the “president” in question was indeed Milosevic, and that he did in fact make the short remark. But Stevanovic insisted Milosevic had in mind Albanian insurgents who were allegedly “hiding corpses of the Serbian victims to cover up their crimes”.

But bodies of murdered Albanian civilians were found several months after Milosevic’s fall from power in closed-off terrain belonging to the unit under Stevanovic’s command.

The witness offered no explanation in court for this other than a vague conspiracy theory that the corpses were placed there by unknown people who wished to frame the Serbs and present them in bad light.

Later, during Stevanovic’s testimony, prosecutors introduced what may prove to be one of the most valuable pieces of public evidence to link Milosevic to the massacre of some 8000 Bosnian Muslims in Srebrenica in 1995 – a tape showing members of an allegedly Belgrade-run paramilitary unit known as the Scorpions executing six Srebrenica prisoners.

Another important insider witness, Delic, was brought in to show the extent of the Albanian insurgency that the army faced in Kosovo in late 1998 and early 1999 – and to prove that the Albanian civilians were escaping the NATO attacks rather than a concerted effort by Belgrade-run security forces to drive them out of the region. He was also hoping to show that many crimes committed by the Yugoslav army soldiers at the time were duly prosecuted.

But he, too, ended up with a dented credibility. The prosecutors reminded the judges of several witnesses who testified in the prosecution part of the trial and who named Delic as a person who ordered several crimes against civilians in Kosovo. Delic refuted these claims by saying that the witnesses harboured personal grudges against him and were anyway unreliable because they were non-Serbs.

He, too, ended up unintentionally strengthening the prosecutors’ case – by bringing documents to court which showed that after the start of the NATO air strikes, the army was receiving orders form a body called the “The Joint Command”.

The prosecutors claim that after the NATO air strikes began, Milosevic placed command over the Yugoslav army and the Serbian police into the hands of his close political associates who he dispatched to Kosovo to orchestrate the cleansing operation. Together with the local police and military commanders, they formed the Joint Command, it’s claimed. Milosevic has been claiming that the latter either never existed or, if it did, had no authority to order military or police.

Delic confirmed the presence of Milosevic’s close associates in Kosovo at the time of the NATO air strikes, and insisted that the Joint Command was just a name for an unofficial coordinating body that could not issue orders – though several among the many orders he brought to The Hague with him appeared to have been signed by this body.

Ivanisevic of Human Rights Watch warns that the credibility issue may continue to haunt the rest of the trial. Considering that the prosecutors can succeed in presenting almost every insider witness Milosevic brings as a part of the very machinery that he used to commit crimes “it is a big question whether there are Milosevic insiders whose political and even ethical integrity could remain unblemished”.

Verrijn Stuart said, “The judges may find it very difficult in the end to have to discard so many witnesses Milosevic brings as unreliable. But they may end up doing it nevertheless.”

The Dutch lawyer also warns that this situation could make it even harder for the trial to have a sobering effect in Serbia, “In the end the Serbs may feel that Milosevic and his witnesses told the truth in the court but that the judges simply refused to believe it, choosing instead for the prosecutors’ version.”

But equally dangerous may be the fact that Milosevic could take a very long time to build his version of reality in the court. According to the latest official record of time spent on the case, published on July 28, he has used up more than half of the 90 court days assigned to the defence case by the judges to the Kosovo indictment alone - and is not yet finished with it.

And despite the judges increasingly frequent warnings that he may simply run out of time to put up his defence against the Bosnian and Croatian indictments, and that they will not feel obliged to prolong his time in court should this be the case, Milosevic has already announced he intends to ask for an extension of his defence.

Milosevic is expected to return to the Hague courtroom on August 17.

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