Milosevic's Guilt: Proven or Not? The Law Part I - Individual Responsibility as a Co-Perpetrator or Aider & Abettor

Following the close of the Prosecution's case in chief in a few weeks, the Court will consider whether Milosevic must answer some or all of the 66 charges against him. In any criminal trial, the prosecution has the burden of establishing the accused's guilt beyond a reasonable doubt for the crimes charged. If the evidence it produces in its case in chief doesn't meet that burden for some or all of the charges, the accused does not have to answer those charges. It is for the Trial Chamber to decide on which, if any, charges he will be acquitted and which he will have to answer when the prosecution rests its case in chief..

In most cases, counsel for the accused file a motion for acquittal with the Court, identifying the charges they believe have not been proved beyond a reasonable doubt. In this case, Milosevic is his own counsel. While the Court has noted that he may file such a motion, to date he has refused to participate in most procedural matters that arise in his trial. In a recent order, the Trial Chamber provided that the Amici may file such a motion, as well as the Accused. Following the close of the Prosecution's case, the Amici and the Accused have seven days in which to file motions for acquittal. The Prosecution then has 14 days in which to answer. Aside from motions from an accused or the amici, the Court has the power to acquit proprio motu (on its own motion) where it finds there is insufficient evidence to require the accused to answer.

Given this, as well as a general interest in how the Prosecution has done in supporting the 66 charges it brought against Slobodan Milosevic, CIJ will provide a brief summary explanation of the law which is likely to be applied to the facts established to date in the Milosevic case. Any such explanation must always be accompanied by a caution -- law is subject to different interpretations and applications by different legal professionals (including, but not limited to, courts). Some legal professionals may disagree with our interpretation of the law. That's the nature of the legal profession. Disagreement of one sort or another is its bread and butter. Ultimately, the Court will decide the proper interpretation of the law to be applied to the facts established in this case.

The case against Slobodan Milosevic combines three separate indictments, one each for Kosovo, Croatia and Bosnia-Herzegovina. In all three cases, he has been charged with individual criminal liability for violating the laws and customs of war and committing crimes against humanity. He has been further charged with individual responsibility for genocide or complicity in genocide in the Bosnia case. The criminal actions (such as murder, forcible expulsion , torture, etc.) that constitute the broader category of crimes against humanity or violations of the laws and customs of war are further identified in the statute and the indictment. Since they are more generally understood, they won't be explained here.

Each indictment describes different fact situations that are alleged to constitute a certain criminal action that is prohibited by the statute. These are called 'counts.' In the Kosovo indictment, the Prosecution has identified 5 counts or 5 separate charges which the Accused is alleged to have committed. The Croatia indictment alleges 32 counts and the Bosnia indictment alleges 29 counts, for a total of 66. If the facts do not support a count or charge, the Court will acquit the Accused of what it alleges. If the evidence proves the allegations beyond a reasonable doubt at this stage, the Accused must present evidence to the Court that establishes a reasonable doubt about its truth. Failure to do that will result in a conviction on that charge.

Milosevic can incur individual responsibility for the crimes alleged in one of several ways: as a co-perpetrator in a joint criminal enterprise, as someone who aided and abetted a joint criminal enterprise (Article 7(1)), or as someone who had superior authority over those who committed crimes but failed to take necessary steps to prevent or punish the crimes (Article 7(3)). This article will address Article 7(1). The following two articles will address Article 7(3) and Article 4 (Genocide) respectively. In all cases, the Prosecution must first establish that crimes prohibited by the ICTY statute occurred. This is sometimes called 'the crime base.'

Article 7(1) provides: '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 Prosecution argues that 'committed' in the statute includes participation in a joint criminal enterprise (JCE) as a co-perpetrator. In Milosevic's case, he is not charged with actual perpetration of a criminal act, such as killing someone. Leaders usually aren't. First, the Prosecution must prove there was a JCE, i.e. that 1) two or more persons were involved, 2) who shared 'a common plan, design or purpose that amounts to or involves the commission of a crime.' In the Croatia and Bosnia indictments, the alleged criminal purpose of the JCE is the forcible removal of non-Serbs from large parts of Bosnia and Croatia through criminal acts, such as property destruction, intimidation, killing, sexual assault, etc. In Kosovo, the alleged purpose was to expel a substantial portion of the Albanian population from Kosovo in order for Serbia to maintain control over the province.

Obviously, the Prosecution must also show that the accused participated in the JCE. Participation does not necessarily mean performing acts that themselves constitute crimes. It is enough if the accused provides some form of assistance or contribution that is directed to furthering the plan or purpose, such as money, personnel or arms and equipment.

In addition to the above (which is known as the 'actus reus' in legal terms), the Prosecution must prove that the accused had one of three identified mental states (mens rea). 1) He intended to commit a certain crime as did other members of the JCE, e.g. the forcible removal of non-Serbs from their homes. 2) The accused knew about a system of ill-treatment (such as the prison camps that included Omarska, Keraterm and Trnopolje) and intended to further it. 3) A member of the JCE commited a crime other than one agreed upon, but it was foreseeable that one of the group might have committed it and the accused knew of and willingly took the risk. An example of the latter would be authorizing the use of convicted criminals in military operations. In that case, their subsequent commission of crimes in military operations would be considered foreseeable, resulting in liability of those who decided or acquiesced in using them.

Milosevic has also been charged with planning, instigating, ordering or otherwise aiding and abetting the JCE. The first three terms are mostly self-explanatory. Planning means designing how the crime will be committed. It may be established through circumstantial evidence. Ordering means using a position of authority to get another to commit a crime; it does not require a formal superior-subordinate relationship, nor a formal order and can be proven by circumstantial evidence. Instigating means intentionally provoking or inducing another person to commit a crime, or being aware that one's conduct towards the other is substantially likely to cause the commission of the crime. A possible example of the latter is broadcasting propaganda that calls for the extermination of members of an identified group, falsely charging them with atrocities.

As an alternative to co-perpetration in a JCE, Milosevic has also been charged with aiding and abetting it. Aiding and abetting consists of providing 'practical assistance, encouragement or moral support' to a person who is committing a crime. Such support can include failure to object or try to stop it. An example of such assistance might be providing money or material means needed to commit crimes or rewarding those who commit them with promotions in rank. The assistance 'must have had a substantial effect on the commission of the crime.' A person who aids and abets must intend to assist commission of the crime or know that his/her action or inaction is likely to have that result. Where an accused is charged with a 'special intent' crime (such as genocide or persecution on racial, religious or ethnic grounds), one who aids and abets it must be aware that the principal actor has the specific intent (e.g. to persecute or to destroy, in whole or in part, a group because of its racial, ethnic, or religious character). The aider and abettor need not share the specific intent to destroy or persecute, but he or she must know about the discriminatory context and know his/her acts have a significant effect on the commission of the crimes. More will be said about this in discussion of the genocide charge.

This summary explanation is meant as a guide for those looking back on the evidence the Prosecution presented against Slobodan Milosevic. Application of the law is not a mechanical process, however. Evidence must be weighed and considered together with other evidence. While the Court may reject some evidence entirely as lacking credibility, it may also accept the evidence but not give it much weight. This might be the case with hearsay evidence, i.e. where a witness testifies about an event he didn't experience personally but heard about from another person.

The next part of this series will discuss what is commonly referred to, and often misunderstood, as command responsibility under Article 7(3) of the ICTY statute.