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Milosevic & Others - The Indictment

Tribunal Update 127: Last Week in The Hague (24-29 May, 1999)
By IWPR

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.


war crimes.


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


Serbia.


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


Yugoslavia.


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


and children."


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."