Milosevic Directs Events in Eastern Slavonia, Admits Support

In cross examining General Sir Rupert Smith, head of UNPROFOR in Bosnia in 1995, Milosevic obtained some concessions but he also made some himself. Serbia and the Federal Republic of Yugoslavia (FRY) supported the Bosnian Serb forces (VRS) by providing military equipment, weapons and ammunition and paying the salaries of senior officers, the Accused admitted. Milosevic characterizes this as humanitarian assistance.

Perhaps more important in the public arena is Milosevic's acceptance that a massacre of civilians occurred at Srebrenica. His position seems to be that it was conducted by mercenaries without the knowledge of General Ratko Mladic, Commander of the VRS. However, Mladic himself admitted being in Srebrenica at the time 7000 to 10,000 Bosnian Muslim men and boys were killed. In addition, two VRS officers and one soldier have pled guilty at the ICTY to crimes committed in Srebrenica under VRS command.

Milosevic also admits to exerting influence over the Bosnian Serbs, though he maintains it was solely directed at peacemaking. General Smith was not privy to his peacekeeping efforts, but he did witness Milosevic's control over Mladic first hand at a meeting near Belgrade on July 15, 1995, the day after the Srebrenica killing operation began. When General Smith, in the company of Carl Bildt, Yasushi Akashi, and Thorvald Stoltenberg, arrived at the meeting site to discuss problems surrounding the fall of Srebrenica, they found Mladic waiting with Milosevic. According to General Smith, 'President Milosevic directed General Mladic to go with me to sort out recovery of Dutch Bat [UNPROFOR Dutch Battalion] and access to prisoners. He [Milosevic] was clearly the superior of Mladic. He referred to him [Mladic] by his Christian name. Mladic was deferring to him.'

When Prosecutor Geoffrey Nice asked General Smith to describe the relationship of Milosevic and Mladic, the General began by describing how power was exercised in the Balkans generally. 'All power was absolute and whoever had it exercised it absolutely.' He went on to tell the Court, 'General Mladic had his own place to exercise power and only when it interfered with the business of Mr. Milosevic and Serbia did he get interfered with or controlled.'

At the July 15 meeting, none of the international team knew about the massacres at Srebrenica the day before. Milosevic insisted neither he nor Mladic knew either: 'No one had the least idea what happened in Srebrenica.' General Smith: 'I did not know there had been massacres in Srebrenica. Just because I didn't know it doesn't follow that you and Mladic didn't know. You didn't have to open the subject.' When pressed by Milosevic, however, the General admitted he had no direct personal knowledge that Serbia or Yugoslavia was involved in Srebrenica. He insisted, however, that the fact 'I could deal with Mladic about [humanitarian aid] convoys moving through Serbian territory' showed a direct link between Milosevic and Mladic. When Milosevic suggested that this and the agreement to give ICRC access to Srebrenica showed his concern for human rights, General Smith testified that the agreement wasn't honored: 'The ICRC was not given access to holding areas because all the people in them had been murdered.'

The Accused took the position that he really had no personal knowledge of what happened in Srebrenica so he was asking the General to inform him. Milosevic suggested that VRS forces attacked the safe haven to 'demilitarize it.' According to what he had heard, the Bosnian 28th Division, constituting 12,000 to 13,000 men, was operating from within the enclave, executing raids on Serbian forces and villages, Milosevic said. General Smith described a different situation: 'Muslim forces within the enclave were small, smaller than I expected, lightly armed and were conducting raids out from Srebrenica into Serb held territory. There was also some traffic between Srebrenica and Zepa and maybe Srebrenica and Tuzla. . . . I would be surprised if there were in excess of 1200 armed men, [though there] may have been 12,000 men . . . .' He concluded that the only time of substantial fighting was when Serb forces attacked the enclave.

The Accused then made one of his more astonishing assertions in the trial: that Yasushi Akashi, UN Special Envoy, was responsible for the ethnic cleansing of Srebrenica. He drew this conclusion from a July 11 communication from Akashi to UN Headquarters in which Akashi suggests refugees from Srebrenica might be resettled in Tuzla. As General Smith pointed out, Akashi was making a suggestion for dealing with the large number of refugees resulting from the VRS taking control of the safe haven. Milosevic responded that was all the Bosnian Serbs were doing.

General Smith was adamant on at least one point, however: General Mladic had responsibility for what happened in Srebrenica, because he was the commander throughout the campaign. 'He was certainly there at the time of the attack and its immediate aftermath,' the General testified. When Milosevic asked him, 'On the basis of your impressions of General Mladic, can you assume that his military honor would allow him to tolerate killing prisoners of war and civilians or something as dishonorable as that?' General Smith simply replied, 'Yes.'

Presenting himself as a magnanimous man of peace, Milosevic also took the opportunity to defend Dutch Bat, the UNPROFOR battalion of Dutch soldiers who were in charge of the safe haven when it fell to the VRS attack. There was no way they could prevent a conflict between such large forces, he argued. Since General Smith hadn't accused Dutch Bat of anything, he was confused by Milosevic's 'question.' Milosevic failed to mention that Dutch Bat was faulted not just for failing to protect the Muslim civilians in the safe area (for which the UN, Akashi and others bear responsibility), but for actively assisting in separating able bodied men and boys from women, children and the elderly, i.e. the ethnic cleansing of the enclave. Though Dutch Bat couldn't know it, the separation was a precursor to genocide.

The other major area of Milosevic's focus was the Markale Marketplace Massacre of August 28, 1995, in which 37 civilians were killed and 88 wounded. As General Smith testified, it was initially unclear where the deadly mortar came from -- Bosnian Serb or Bosnian Government positions. Because of the conflicting reports, the General ordered his assistant, Colonel Powell, to review and compile the reports. On that basis, General Smith testified, 'I concluded, beyond a reasonable doubt, that the mortar round came from the Bosnian Serb positions.'

The Accused spent almost half his allotted time in cross examination on the source of the mortar, based on the initial conflicting reports. The evidence which convinced the General the shell was fired from VRS positions was an analysis of the point of impact, as well as the fact that no one heard the shell inside the enclave. A shell of its size makes a huge noise on firing, the General testified.

Demonstrating his proclivity to distort and selectively cite information, Milosevic read from a letter by the General's Assistant, Brigadier General J. Baxter, to the effect that 'when I wrote the report [on the Markale Massacre] there was still doubt in my mind.' Judge May interrupted by reading the complete sentence: 'When I wrote the report there was still doubt in my mind, but what convinced me was the fuse furrow.' Analysis of the fuse furrow shows the direction from which the mortar was fired.

To support his accusation that Bosnian Government forces fired on their own citizens, Milosevic cited an article in Foreign Affairs Magazine, Sept./Oct. 1995, by General Charles Boyd, Deputy Supreme Commander of US Forces in Europe. In a sweeping statement General Boyd concluded, 'No citizen of Sarajevo doubts that Muslim forces found it in their interests to shell friendly targets.' General Smith told the Court he did not recognize the article and General Boyd wasn't anywhere near Sarajevo at the time. 'There were many rumors about self-inflicted difficulties. I was never able to establish any truth to any of those rumors on any occasion.'

Following the Markale Massacre, General Smith for UNPROFOR and Admiral Smith for NATO authorized NATO air strikes against the Bosnian Serb forces. In May, NATO struck VRS ammunition depots when Mladic continued to take weapons from collection points despite warnings to desist. In retaliation, the VRS shelled the safe areas, killing 71 people in a Tuzla marketplace. After NATO's second air strike against the VRS, the Bosnian Serbs took UN Military Observers hostage. They chained a Canadian to a bridge and threatened to cut his throat if air strikes didn't cease. Eventually, about 400 hostages were seized throughout Bosnia. When Mladic insisted on his right to use hostages as human shields, despite being told it violated the Geneva Conventions, UN negotiators turned to Milosevic for help. All hostages were released through Milosevic's 'influence' on the Bosnian Serbs.

Milosevic complained that his efforts at peacemaking are now being construed as criminal. Evidence of his influence for ending the war is also evidence of his influence on conducting it. Judge May, reformulating one of Milosevic's questions, asked General Smith, 'Did you see any evidence of the Accused controlling the Bosnian Serb Army in any way, or having influence over it?' General Smith answered, 'I did not see direct direction of Bosnian Serb forces. But I did see his influencing and controlling hand and gave those examples [release of hostages and Dayton] and the example in the aftermath of Srebrenica.'

In viewing General Smith's testimony and other evidence of Milosevic's involvement in the Bosnian war, it is useful to recall what the Prosecution must prove. Slobodan Milosevic has been charged with violation of Article 7(1) of the Statute of the ICTY [as well as Article 7(3)], which provides that 'A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.' The indictment points out that 'committed' means 'participation in a joint criminal enterprise' to permanently remove the majority of non-Serbs from large areas of Bosnia, through the commission of crimes in violation of the ICTY Statute, such as killing, causing serious bodily or mental harm, etc. In addition, the indictment seeks to hold the Accused responsible for any natural and foreseeable consequences which occur as a result of crimes committed in pursuit of the joint criminal enterprise.

More specifically, the indictment charges Milosevic with exercising effective control or substantial influence over participants in the joint criminal enterprise. It also charges that Milosevic together with other participants in the joint criminal enterprise effectively controlled or substantially influenced the actions of the VRS.

The Prosecution is not required to prove that Milosevic was the executive director, the creator or the initiator of the criminal enterprise, only that he was one of the participants OR that he aided and abetted the enterprise. Providing financial, material and logistical support to the VRS to enable them to carry out the criminal purpose is evidence that he participated in the joint criminal enterprise, as is his exercise of 'substantial influence' over the Bosnian Serb leadership.

The Prosecution's burden is greater with regard to the genocide charge. At the outset, it is important to remember that Milosevic has been charged with genocide OR complicity in genocide. To prove genocide, the Prosecution must show that Milosevic shared a specific intent to destroy a whole or part of the Bosnian Muslim ethnic or national group. For complicity in genocide, the Accused need not have shared the genocidal intent, though he must have known about it and known that the crimes in which he was an accomplice were in furtherance of that intent.

General Smith's evidence (and Milosevic's in-court, though unsworn, admission of providing financial, military and other concrete assistance) support the Prosecution's charge that Milosevic was actively involved in the Bosnian Serb venture to ethnically cleanse substantial parts of Bosnia. The General's testimony also supports the allegation that Milosevic exercised substantial influence over the Bosnian Serbs. Evidence that their enterprise was criminal is found in their own words recorded at Bosnian Serb Assembly meetings for posterity. [See CIJ Reports: 'Transcripts Reveal Milosevic Involvement in Bosnian War,' September 12, 2003, and 'Bosnian Serbs Plan Ethnic Cleansing, Cover Up Crimes,' September 13, 2003.] The missing link continues to be Milosevic's, Serbia's or FRY's direct involvement in Srebrenica.