Milosevic Puts Serbian People on Trial: In his opening statement, the accused focuses charges on Serbia

The duel between Milosevic and the ICTY Prosecutor has begun again as both gave opening statements in the Croatia and Bosnia-Herzegovina phase of the three-part indictment. Speaking for a little more than an hour, lead prosecutor Geoffrey Nice tried to focus attention on the fact that what is happening is a legal proceeding, not a media drama. By contrast, Milosevic presented his defense as a Cecil B. DeMille production, attempting to enlarge the focus to take in historical and international processes. Since these are opening statements and not evidence, the Trial Chamber didn't intervene.

For actions in Croatia and Bosnia, Milosevic has been charged with 61 counts of crimes against humanity, war crimes and, in Bosnia, genocide. Concerning the latter, Mr. Nice cautioned that genocide may be no more serious in terms of human suffering than some crimes which carry less of an emotional impact. He nevertheless pointed out that the OTP will attempt to prove that Milosevic intended to destroy the Bosnian Muslim community in part, or that genocide was a natural and foreseeable consequence of a joint criminal enterprise, of which Milosevic was a participant. Alternatively, the prosecution will attempt to prove he had command responsibility, that he knew or should have known that genocide was committed and he failed to take steps to stop or punish it.

In addition to the genocide charge, Milosevic must answer charges that he was responsible for myriad crimes committed in the process of the alleged joint criminal enterprise designed to ethnically cleanse parts of Croatia and Bosnia of all but their Serbian populations in pursuit of a Greater Serbia. Those crimes include persecutions on political, racial or religious grounds; extermination, murder and willful killing; unlawful confinement, imprisonment, torture and inhumane acts; deportation and forcible transfer; wanton destruction and plunder of public or private property. The prosecution has selected 14 municipalities in which to provide detailed evidence, 24 in which it will provide less detailed evidence and an additional 9 where demographic evidence alone will be offered. The sites for detailed evidence include Vukovar, the Drina Valley, Visegrad,Bosanski Samac, Brcko, Prijedor, Sanski Most, Sarajevo and Srebrenica.

As if in answer to media criticism in the Kosovo phase of the case that the prosecution failed to produce a 'smoking gun,' Mr. Nice cautioned the Court to 'bear in mind that criminals don't leave traces or paper trails.' He also took the opportunity to remind the Court that insider witnesses often have their own agendas and, therefore, don't always tell the entire truth. 'Should they not be called?' he asked rhetorically, answering that it is preferable wherever possible to call them, relying on the prosecution to uncover the untruth. Without mentioning him by name, Mr. Nice referred to former secret police head Radomir Markovic's testimony in the Kosovo part of the case, where he 'parroted agreement' with whatever Milosevic suggested in cross examination. Under questioning by Milosevic, Mr. Markovic disavowed a statement with his signature on it which implicated his former boss in a cover up of the murder of civilians. The prosecution then produced the police investigator who took the statement and the officer who recorded it; both testified that Markovic carefully read, participated in drafting and signed the statement.

From the OTP's opening statement and pretrial brief, it appears the prosecution will focus less on victim witnesses and more on documentation, interdicted telephone messages, insider witnesses and international interlocutors who can connect Milosevic to the events already established in other trials. The Court will decide what facts from other trials to take judicial notice of. If the prosecution will focus on Milosevic, the accused will focus on anything but.

Milosevic used his opening statement, three times as along as the prosecution's, to proffer his thesis that foreign nations and the so-called international community were responsible for the breakup of Yugoslavia. They provoked a civil war, he claimed, that he tried to prevent and stop at every opportunity. Once again, Milosevic attempted to shift the focus from his actions onto his country. As the prosecution pursues a case of individual responsibility, Milosevic consistently fashions it as a case against the Serbian people. It seems he has 'ethnic vision,' and is unable to view the world otherwise. Tragically, too many in Serbia reportedly accept Milosevic's characterization of a trial that is designed to negate easy claims of collective guilt.

The only issues he raised that might be relevant to a defense are his claims that the wars in Croatia and Bosnia were civil wars in which Serbia and the FR Yugoslavia were not involved. Even so, he admitted that Serbia helped the Serbs in Bosnia and Croatia. Stating that he did not claim that no war crimes were committed, he maintained they existed on all sides and were not part of a policy.

Not unexpectedly, he characterized his role as that of a peacemaker. His only aim, he claimed, was that the three constituent peoples in Bosnia reach an equitable agreement among themselves. 'It was not up to us to meddle in those affairs.' The challenge for him will be maintaining that he was a peacemaker and a power broker while arguing that he didn't have control or influence over the Bosnian and Croatian Serbs.

The prosecution anticipated Milosevic's dual role and public dissembling. As Mr. Nice said in his opening statement, Milosevic conducted a proxy war, supplying and supporting local Serb forces in Croatia and Bosnia, while publicly disavowing them to deflect international criticism. Nice also referred to a decision in the Tadic case where the Appeals Court recognized that the Bosnian Serb Army acted under the control and on behalf of the FR Yugoslavia. As stated above, the prosecutor can seek to have the Trial Chamber take 'judicial notice' of facts established in other Tribunal cases, which means he will not have to prove them.

Milosevic's opening statement has shown once again that he will participate in the trial, but he will attempt to do so on his terms. That insures a continuing struggle between Milosevic and the Court and the OTP, as the latter two attempt to focus Milosevic on the legal case against him, and he repeatedly argues against a case that has not been charged -- the collective guilt of the Serbian people.