Milosevic Lectures on Human Rights: As Human Rights Leader Testifies

A co-founder of one of the world's leading human rights organizations, Helsinki Watch, now known as Human Rights Watch (HRW), Ms. Jerri Laber testified to Milosevic's knowledge of human rights abuses in Croatia and Kosovo and his failure to do anything to stop them. Beginning in 1981, Helsinki Watch began investigating and reporting in the former Yugoslavia. A 1981 report concerned oppression against the Albanians in Kosovo. By 1990, the situation had worsened and another report was issued, describing it as 'one of the most severe abuses of human rights in Europe today.'

But the bulk of Ms. Laber's testimony focused on the situation in Croatia beginning in 1990. Together with a colleague, Kenneth Anderson, Ms. Laber journeyed to Croatia in August 1990. They found an atmosphere of near hysteria among the Croatian Serbs, which, after extensive investigation, they concluded was being fed by both Croatia and Serbia. While Serbian fears of growing nationalism in Croatia were not unfounded, slick propaganda produced in Serbia was designed to exploit those fears. One publication, for example, showed a photograph of a Croat cutting off the head of a Serb. Only the small print identified it as a photo from the 1940's of an Ustasha atrocity.

As a result of the investigation, Helsinki Watch issued a report setting forth human rights abuses by the Croats, Serbs and the Yugoslav Army (JNA), which it said was attacking Croatian civilian targets in coordination with Serbian insurgents to assist the Serbs in preserving territorial gains made through fighting. On January 21, 1992, a letter, outlining the human rights abuses committed by Serbs and the JNA and exposed in the report, was sent to Slobodan Milosevic, then President of the Republic of Serbia, and General Blagoje Adzic, then Federal Minister of Defense and Chief of Staff of the JNA. A similar letter, outlining Croatian violations was sent to then President of the Republic of Croatia, Franjo Tudjman. Among the human rights abuses reported to Milosevic and Adzic were summary executions of civilians and soldiers who had laid down their arms after the siege of Vukovar, as well as other killings, beatings and forced displacement of Croat civilians to create ethnically pure areas.

Ms. Laber and a colleague traveled to Belgrade to present the letter personally to Milosevic and Adzic. Despite intervention by the U.S. Ambassador Warren Zimmerman, they were unable to gain an audience with either man. Instead, they had two meetings -- one with army personnel, who basically denied everything, and the other with Vojislav Kostunica and Dragoljub Micunovic. They also held a press conference and released the letter to the Yugoslav and international media.

On February 4, 1992, following a reported massacre of eight Croat civilians, HRW sent a letter to Milosevic and Adzic, asking them to investigate. There was no reply.

On February 1l, 1992, Milosevic's chef de cabinet, Goran Milenovic wrote a reply to HRW's January 21st letter. While it was a disclaimer of involvement since he maintained Serbia was not involved in Croatia, it is evidence strongly suggesting that Milosevic received and read HRW's January 21st letter outlining human rights abuses committed by citizens of Serbia in Croatia. In contrast to Tudjman, who met with representatives of HRW and took some, though less than satisfactory, action to address their concerns, Milosevic maintained a position of noninvolvement. At the conclusion of direct examination, prosecutor Geoffrey Nice asked Ms. Laber, 'As to the allegations against the accused, did you have any information they'd be acted on by the accused in a serious way?' She replied, 'We didn't see any significant response to try to prevent abuses or punish them.'

Milosevic's cross examination, meant to forcefully demolish the HRW reports, instead exposed his ignorance of the process in which he is involved. His persistence in pursuing inappropriate questions was almost embarrassing, though he seemed oblivious to it.

The accused began by trying to discredit much of the witness's testimony because she was not an eye witness to the human rights violations documented in the HRW reports, nor did she conduct investigations for all of them. In addition, he complained because many of the witnesses HRW interviewed were anonymous. While Ms. Laber explained the need to provide anonymity for witnesses who may be threatened and in danger, Judge May reminded the accused that the Tribunal accepts hearsay evidence. The only consideration is what weight to give it, and the Tribunal will decide that. Milosevic could not be deterred. He continued to express outrage that the representative of a human rights organization was violating a 'principle of direct evidence.'

In fact, the importance of Ms. Laber's testimony was not the truth of the report, but the fact that Milosevic had notice of it, yet did nothing to investigate the crimes described. The report put him, as someone with power, on notice, which is followed by a requirement to act, i.e. investigate, and, if true, punish the perpetrators and give appropriate orders that it is not to be repeated. His defense to this is that he was president of Serbia with no power over what happened in Croatia. To that Ms. Laber responded, 'Our impression and all the evidence and impartial observers was that events in Croatia were encouraged by your government in Serbia. The tactics used there we would see repeated in Bosnia, stirring unrest, taking legitimate concerns about safety, building to hysteria, encouraging taking up of arms so the army, under your control, could move in to protect [the people].' Ms. Laber is not the first witness to challenge Milosevic's claim of noninvolvement. Mr. Milan Babic, who recently ended two weeks of testimony, substantially eroded that defense.

Milosevic undertook a very curious line of questioning, implying that Ms. Laber did not know well those who did investigations for HRW. She denied it, explaining that she personally hired some of the investigators who produced the reports at issue. It was a question with apparently no basis in fact, yet Milosevic could not let it go, as if he could not believe that the information on which he based this line of questioning was wrong. In fact, his entire cross examination seemed oddly scripted. Perhaps it was because he delved into the unfamiliar area of human rights, though he did so with his usual arrogance, even lecturing the cofounder of one of the world's most prominent human rights organizations about the indivisibility of human rights.

Getting in well over his head, Milosevic challenged the credentials of HRW investigators because he assumed none of them worked as a judge or were trained in that profession to take statements in a legal proceeding in court. Ms. Laber responded that they were trained as investigators -- in law school and by HRW. Milosevic protested, 'But you know according to laws in your country and other countries that attorneys don't take statements in a proceeding.' That was too much for Judge May, who interrupted with 'I never heard of such . . .' then turned to the witness and asked, 'Do attorneys take statements from witnesses in the United States?' Ms. Laber responded with some satisfaction, 'That's their job!'

The error Milosevic fell into is that judges and lawyers have different roles and responsibilities in different legal systems. In the old Yugoslav system, and many civil law systems, it is the judge's job to question witnesses. In the common law system, which heavily influences ICTY practice and procedure, lawyers do a significant amount of case investigation outside of court, and have primary responsibility for questioning witnesses inside the courtroom. It is one of the basic differences of the two major legal systems. Ironically, if the Tribunal followed civil law practice on this point, Milosevic would be denied his 'right' to question witnesses directly. His questions would be asked by the judge.

Milosevic's next strategy was to attack the witness's evidence by showing that her meetings in Belgrade with Kostunica and Micunovic had nothing to do with the government, as they were both Members of Parliament from opposition parties. Ms. Laber quickly responded, 'Are you telling me they misrepresented themselves?' Milosevic said he was not suggesting such a thing, but perhaps she misunderstood them and their positions. According to the witness, they nevertheless expressed the official government line. Well then, Milosevic concluded, it must have been the truth if both the government and the opposition agreed. That didn't change the facts on the ground, Ms. Laber said, -- the summary executions and ethnic cleansing.

Returning to his new favorite theme of human rights violations, Milosevic tried to engage the witness in a discussion of the rights of sovereignty and self-determination. HRW does not deal with those, she said. Those issues had nothing to do with her testimony. In fact, as Judge May pointed out, those are issues of law that require legal argument. 'You are examining the witness, not arguing matters of law with her.'

When Milosevic turned to the HRW reports themselves, he was on no firmer ground. The witness was not there to argue their contents, but to testify that Milosevic had been made aware of what they alleged. As she said, the time for him to have questioned the contents was in 1991, when the reports were issued. Of course, he could challenge the contents if the prosecution were offering them to prove the events they describe. It is not. It has already offered proof of crimes referred to in the report, including events in Vukovar, and we can expect it will present more as the trial continues. Ms. Laber is testifying to Milosevic's knowledge about those alleged crimes and his failure to investigate, stop them or punish those who perpetrated them. Even if he did not order the crimes or if they were not the foreseeable consequence of his actions in the alleged joint criminal enterprise, he would bear responsibility for them if they were committed by people who answered to him and he did nothing to punish them or to prevent the crimes.

Pursuing his human rights script, Milosevic ended his cross examination on the first day by asking the witness, 'Those human rights you refer to, how can they be protected by provoking civil wars, by violent disintegration of a country, sanctions, aggression, bombing . . .?' Demonstrating that asking such rhetorical questions in a courtroom are likely to backfire, Ms. Laber adroitly responded, 'I'd wanted to ask you that, Mr. Milosevic, for many years.'