Milosevic & Others - The Indictment
Tribunal Update 127: Last Week in The Hague (24-29 May, 1999)
Milosevic & Others - The Indictment
Tribunal Update 127: Last Week in The Hague (24-29 May, 1999)
Tribunal for the former Yugoslavia (ICTY) announced the indictment of, and
issued warrants of arrests against: Slobodan Milosevic, the President of
the Federal Republic of Yugoslavia; Milan Milutinovic, the President of
Serbia; Nikola Sainovic, Deputy Prime Minister of the FRY; Dragoljub
Ojdanic, Chief of Staff of the Yugoslav Army; Vlajko Stojiljkovic, Minister
of Internal Affairs of Serbia.
Probably no other indictment in the history of justice has ever enjoyed
such instant and global publicity. Its announcement was relayed live on
several global and continental TV channels. The text of the indictment was
instantly made available on dozens of human rights internet websites, and
the news of indictment was splashed across cover pages of the print media
across the world, with one notable exception: the Federal Republic of
Yugoslavia, or Serbia, to be precise.
There is a reason for all this: the indictment is, we have all been told,
first in the history of this (or any other) international Tribunal to
charge an acting Head of State, during an on-going armed conflict, with the
commission of serious violations of international humanitarian law, i.e.
At least as the first co-accused - Slobodan Milosevic - is concerned, the
indictment has long been expected - ever since he as the then President of
Serbia was branded a "probable war criminal" in December 1992, by the then
US Acting Secretary of State, Lawrence Eagleberger. Foundations for the
Tribunal were laid half a year later, and its Prosecutors, first Richard
Goldstone and then the current incumbent, Louise Arbour, have been swearing
by the word that they would "climb the ladders of responsibility as high as
the evidence will lead them."
The main obstacle to that ascent, at least in the case of Milosevic, was
the so-called "legal chain of command". Milosevic was the Serbian President
at the time when "Serbia was not involved in war." If armed forces of the
former SFR Yugoslavia (Yugoslav People's Army, JNA) and the present
Yugoslavia (Army of Yugoslavia, VJ) were involved in atrocities committed
in the wars in Croatia and Bosnia and Herzegovina, this would normally only
indicate command responsibility of the leaders of Yugoslavia, not of
This, according to a prediction made by human rights lawyer Srdja Popovic,
in issue No. 7 of the IWPR's newsletter, Tribunal February-March 1997), is
"precisely the direction Milosevic wants the investigation to take."
Louise Arbour, the current Chief Prosecutor, understood well that following
the lead of the "legal chain of command" would not take her far. In an
interview with Tribunal Update last November and published in part in issue
No. 123, she commented on the matter at some length. Her statement is
crucial for proper understanding of the "Milosevic & Others" indictment.
At the time Arbour noted: "The evidence [in command and control
investigation] is neither as self-evident nor as easily available. A high
level of sophistication in investigation of such responsibility is needed
in order to gain an overview of military, paramilitary and political
structure, and to understand the functioning of a chain of command.
"Finally, what is even more difficult, as was learned from the conflicts in
both the former Yugoslavia and Rwanda, is the fact that what on paper or by
law may appear to be a command structure, may not be so in reality. The
investigation must cover all those issues in accordance with the standard
of proof applicable in criminal cases in order to determine and understand
what was the command structure both in theory and in reality. This
necessitates inordinate amount of time, energy and level of sophistication
in order to produce results."
The following paragraphs of the "Milosevic & Others" indictment should then
be read carefully in light of the above: "(Paragraph) 21. Although Slobodan
MILOSEVIC was the President of Serbia during the wars in Slovenia, Croatia
and Bosnia and Herzegovina, he was nonetheless the dominant Serbian
political figure exercising de facto control of the federal government as
well as the republican government and was the person with whom the
international community negotiated a variety of peace plans and agreements
related to these wars."
Paragraph 21 is an indication of what is likely to come at a later stage:
the widening of the case against Slobodan Milosevic to include violations
of the international humanitarian law that occurred precisely at the period
when "Serbia was not at war," although its president had a "de facto
control" over federal government and its forces engaged in the wars in
Croatia and Bosnia and Herzegovina.
That possibility was also announced in some other parts of the indictment,
albeit it is primarily focused on the de jure basis for the responsibility
of Milosevic and others for crimes committed in Kosovo over the first five
months of this year.
De jure, the matter appears to be clear: "(Paragraph) 56. As President of
the FRY, Slobodan MILOSEVIC functions as President of the Supreme Defense
Council of the FRY. The Supreme Defense Council consists of the President
of the FRY and the Presidents of the member republics, Serbia and
Montenegro. The Supreme Defense Council decides on the National Defense
Plan and issues decisions concerning the VJ. As President of the FRY,
Slobodan MILOSEVIC has the power to "order implementation of the National
Defense Plan" and commands the VJ in war and peace in compliance with
decisions made by the Supreme Defense Council. Slobodan MILOSEVIC, as
Supreme Commander of the VJ, performs these duties through "commands,
orders and decisions."
When the conflict started in Kosovo in March 1998, it appeared that
Milosevic would get away with it again, because in the meantime he became
the President of Yugoslavia and it was the police forces of Serbia that
were engaged in committing atrocities in Kosovo. Even when the conflict
escalated and the regular military units entered it, the majority of
reports pointed at the atrocities and crimes committed by members of the
Serbian special police and the paramilitary formations from Serbia, neither
of which could easily fit under the chain of command of the President of
The following Paragraph of the indictment, however, makes it clear that
Milosevic was not only de facto, but also de jure responsible for
activities of the Serbian police: "57. Under the FRY Act on the Armed
Forces of Yugoslavia, as Supreme Commander of the VJ, Slobodan MILOSEVIC
also exercises command authority over republican and federal police units
subordinated to the VJ during a state of imminent threat of war or a state
of war. A declaration of imminent threat of war was proclaimed on 23 March
1999, and a state of war on 24 March 1999."
Everyone knows just how unlimited Milosevic's power has been over the past
10 years, and Arbour at one point complained that such alleged "public
knowledge" is in fact her worst enemy. "The transformation of public
perception into an indictable case, on the standards that we are satisfied
with and for offences that are within our Statute, is a considerable
transition to be made," she said in an IWPR interview two years ago.
Judging by the below paragraphs extracted from the indictment, the
transition has now been successfully made. Arbour must have finally traced
the famous "missing link" in Milosevic's chain of command: "58. In addition
to his de jure powers, Slobodan MILOSEVIC exercises extensive de facto
control over numerous institutions essential to, or involved in, the
conduct of the offences alleged herein. Slobodan MILOSEVIC exercises
extensive de facto control over federal institutions nominally under the
competence of the Assembly or the Government of the FRY. Slobodan MILOSEVIC
also exercises de facto control over functions and institutions nominally
under the competence of Serbia and its autonomous provinces, including the
Serbian police force. Slobodan MILOSEVIC further exercises de facto control
over numerous aspects of the FRY's political and economic life,
particularly the media. Between 1986 and the early 1990s, Slobodan
MILOSEVIC progressively acquired de facto control over these federal,
republican, provincial and other institutions. He continues to exercise
this de facto control to this day.
"59. Slobodan MILOSEVIC's de facto control over Serbian, SFRY, FRY and
other state organs has stemmed, in part, from his leadership of the two
principal political parties that have ruled in Serbia since 1986, and in
the FRY since 1992.
"60. Beginning no later than October 1988, Slobodan MILOSEVIC has exercised
de facto control over the ruling and governing institutions of Serbia,
including its police force. Beginning no later than October 1988, he has
exercised de facto control over Serbia's two autonomous provinces -- Kosovo
and Vojvodina -- and their representation in federal organs of the SFRY and
the FRY. From no later than October 1988 until mid-1998, Slobodan MILOSEVIC
also exercised de facto control over the ruling and governing institutions
of the Montenegro, including its representation in all federal organs of
the SFRY and the FRY.
"61. In significant international negotiations, meetings and conferences
since 1989, Slobodan MILOSEVIC has been the primary interlocutor with whom
the international community has negotiated. He has negotiated international
agreements that have subsequently been implemented within Serbia, the SFRY,
the FRY, and elsewhere on the territory of the former SFRY..."
Thereafter follows an extensive list of international negotiations,
meetings and conferences, beginning with The Hague Conference in 1991 and
ending with the Dayton peace negotiations in November 1995.
In her final paragraph devoted to Milosevic's responsibility, Arbour
concludes the above analysis - based on supporting evidence that seemed
convincing enough to Judge David Hunt to confirm the indictment - in the
following manner: "62. As the President of the FRY, the Supreme Commander
of the VJ, and the President of the Supreme Defense Council, and pursuant
to his de facto authority, Slobodan MILOSEVIC is responsible for the
actions of his subordinates within the VJ and any police forces, both
federal and republican, who have committed the crimes alleged in this
indictment since January 1999 in the province of Kosovo."
In a similar way, she analyzed the de jure and de facto authority of the
other co-accused, pointing put that each of the accused is individually
criminally responsible for the crimes alleged against him in this
indictment, pursuant to Article 7(1) of the Tribunal Statute, which
includes committing, planning, instigating, ordering or aiding and abetting
in the planning, preparation or execution of the alleged crimes.
By virtue of their positions of power and their de jure and de facto
authority, Milosevic, Milutinovic, Ojdanic and Stojiljkovic are also - or
alternatively - charged with criminal responsibility for the acts of their
subordinates (the so called "command responsibility", pursuant to Article
7(3) of the Tribunal Statute.)
Each of the accused is charged with three counts of crimes against humanity
(for unlawful deportation, murder and persecution on political, racial or
religious grounds), and for one count of violations of the laws or customs
of war (for murder).
The indictment alleges that, between 1 January 1999 and late May 1999, the
military forces and some police units of the FRY, the police force of
Serbia and associated paramilitary units jointly engaged in a widespread
and systematic series of offensives against many predominantly Kosovo
Albanian towns and villages. By the date of the indictment, approximately
740,000 Kosovo Albanians, about one-third of the entire Kosovo Albanian
population, had been expelled from Kosovo, and thousands more are believed
to be internally displaced.
The indictment further describes in detail when and how Albanian civilians
were expelled and deported from a score of Kosovo cities and towns:
Djakovica, Gnjilane, Kosovska Mitrovica, Orahovac, Pec, Pristina, Prizren,
Srbica, Suva Reka and Urosevac.
The general operational pattern was that Kosovo Albanian residents were
ordered to leave their homes, upon threat of death; their property was
stolen and their homes destroyed. They were forced to join convoys of
similarly displaced Kosovo Albanians en route to the borders; they were
physically mistreated; in many instances men were separated from the women
and children and they were killed. At the border, the property they had
with them was stolen, including their identification papers and motor
vehicles. In some cases, the villages were initially shelled and Kosovo
Albanians were killed in the shelling.
A good illustration of such a "general pattern" is Paragraph 97a of the
indictment that describes the deportation of the Kosovo Albanian population
of Djakovica: "97-a. Djakovica/Gjakove : On or about 2 April 1999, forces
of the FRY and Serbia began forcing residents of the town of
Djakovica/Gjakove to leave. Forces of the FRY and Serbia spread out through
the town and went house to house ordering Kosovo Albanians from their
homes. In some instances, people were killed, and most persons were
threatened with death. Many of the houses and shops belonging to Kosovo
Albanians were set on fire, while those belonging to Serbs were protected.
During the period from 2 to 4 April 1999, thousands of Kosovo Albanians
living in Djakovica/Gjakove and neighbouring villages joined a large
convoy, either on foot or driving in cars, trucks and tractors, and moved
to the border with Albania. Forces of the FRY and Serbia directed those
fleeing along pre-arranged routes, and at police checkpoints along the way
most Kosovo Albanians had their identification papers and license plates
seized. In some instances, Yugoslav army trucks were used to transport
persons to the border with Albania."
The five indicted leaders are also charged with responsibility for acts
committed by forces under their command and control, which had, on a number
of occasions during this period, deliberately shot and killed Kosovo
Albanians, including women and children. Specifically, the five indictees
are charged with the murder of over 340 persons identified by name in an
annex to the indictment. Several such massacres are described: Racak (45
killed); Velika Krusa (105); Izbica (around 130).
The papers include a description of one of the massacres that took place in
Djakovica: "98-g. On or about the early morning hours of 2 April 1999, Serb
police launched an operation against the Qerim district of
Djakovica/Gjakove. Over a period of several hours, Serb police forcibly
entered houses of Kosovo Albanians in the Qerim district, killing the
occupants, and then setting fire to the buildings. In the basement of a
house on Millosh Gilic Street, the Serb police shot the 20 occupants and
then set the house on fire. As a result of the shootings and the fires set
by the Serb police, 20 Kosovo Albanians were killed, of whom 19 were women
While announcing the indictment against "Milosevic & Others", the
Prosecutor Louise Arbour took pains to stress that it "does not represent
the totality of the charges that may result from our continuing
investigations of these accused, nor does it represent our final
determination of the responsibility of others in relation to the same
events. (...) We are continuing to develop an evidentiary base upon which I
believe we will be able to expand upon the present charges. We are still
actively investigating other incidents in Kosovo, as well as the role of
the accused, or of some of them, in Croatia and Bosnia in earlier years.
And she added: "We are also still investigating the role and responsibility
of others into the crimes contained in this indictment."
Apart from the fact that she must have found the "missing link" in
Milosevic's chain of command for Kosovo, Arbour has obviously also gone
some way in investigating his role in the wars in Croatia and Bosnia at the
time when "Serbia was not in [sic] war."
The indictment draws a parallel between Kosovo and the two earlier wars in
Paragraph 35: "35. The unlawful deportation and forcible transfer of
thousands of Kosovo Albanians from their homes in Kosovo involved
well-planned and coordinated efforts by the leaders of the FRY and Serbia,
and forces of the FRY and Serbia, all acting in concert. Actions similar in
nature took place during the wars in Croatia and Bosnia and Herzegovina
between 1991 and 1995. During those wars, Serbian military, paramilitary
and police forces forcibly expelled and deported non-Serbs in Croatia and
Bosnia and Herzegovina from areas under Serbian control utilizing the same
method of operations as have been used in Kosovo in 1999: heavy shelling
and armed attacks on villages; widespread killings; destruction of
non-Serbian residential areas and cultural and religious sites; and forced
transfer and deportation of non-Serbian populations."
As expected, official Belgrade took the news of indictment with
indignation, describing it as but another form of political pressure on
Milosevic to accept NATO requests. They are in for a surprise, however:
while the bombing will stop one day, the indictment is here to stay.
President Milosevic could have made a deal with President Clinton, Prime
Minister Blair or General Clark, but not with Prosecutor Arbour.
The always present possibility of a political compromise at the expense of
justice was certainly one of contributing factors for Arbour's rush to
raise an indictment that covers only five months of the extensive political
career of Slobodan Milosevic, which both de jure and de facto spans more
than a decade.
Announcing the indictment, Arbour admitted that she had been "very
concerned that these accused -- alone or with the assistance of others --
might succeed factually in putting themselves outside of the reach of the
law, go somewhere, disappear."
She went on: "It was a source of concern that I thought was serious enough,
that required us to deploy a particular effort in the office to lead this
investigation to completion as quickly as possible." She obviously took
seriously rumours of recent weeks that Milosevic was seeking a guarantee of
immunity from international criminal prosecution -- or even a "golden
exile" in South Africa or some other country -- in exchange for his assent
to a political solution for the current crisis.
To those who expressed their concern about the impact that this indictment
may have on the "peace process", Arbour sent a strong message at the press
conference: "Although the accused are entitled to the benefit of the
presumption of innocence until they are convicted, the evidence upon which
this indictment was confirmed raises serious questions about their
suitability to be the guarantors of any deal, let alone a peace agreement.
They have not been rendered less suitable by the indictment. The indictment
has simply exposed their unsuitability."