Real Cross Examination, But No Yolk: Croatian Serb says extremists pressed for war; lacks knowledge of Milosevic involvement

For nearly the first time in his 100 plus day trial, Milosevic showed some skill in cross examination. It may also be an indication that he's beginning to take his own defense seriously.

This milestone occurred during the testimony of protected witness C-037. Unfortunately, significant parts of his testimony were in private session (the Trial Chamber moved into private session at least 15 times during the 4 days of testimony), making it difficult to assess how successful the cross examination was.

Witness C-037, though unidentified, appears from his testimony to be a Croatian Serb politician from Western Slavonia. He told the Court he and others in Western Slavonia favored a negotiated solution to problems Serbs were experiencing as Croatia moved toward independence. There was an extremist element who favored ties with Serbia, however. They gained support through stoking fears of a return to the Croatian fascism of WWII. Their efforts were significantly aided by having extensive access to the media in Belgrade. That is about as close as Witness C-037 got to linking the accused to events in Croatia, including crimes by Croatian Serbs against Croatian civilians -- at least in open session.

In fact, Milosevic, exercising his new-found cross examination skill, got him to say that he had no personal knowledge, as an official, of Milosevic's involvement in any crimes. The yolk that is missing from this egg is whether he testified in private session to indirect knowledge.

During the first day of cross examination, Milosevic elicited a series of admissions from the witness that appeared to undermine his importance for the prosecution. No, no one from Serbia was involved in establishing a local Serbian Socialist Party (SKS), he said. No, no one from Serbia helped establish, participated in or funded the Serbian Autonomous Region (SAO) set up in Western Slavonia. Nor did he know if there was Serbian support for the SAO Krajina. He was unable to say whether the territorial defense (TO) was supported by Serbia or the Yugoslav Army (JNA), and admitted it was organized by and made up of local Serbs. Milosevic also secured his agreement that the atmosphere of fear and threat escalated spontaneously following Croatia's constitutional change that demoted its Serb citizens from a constituent people to a minority, without defined rights.

Nevertheless, there were important points on which the witness would not be budged. When Milosevic suggested that the Serbs did nothing more than defend themselves on territory where they'd lived for centuries, C-037 answered with some passion: 'Where Serbs exercised control, they should not have torched Croatian villages or expelled or killed people. It is not right. . . . If you are involved in defense, it doesn't give you the right to kill others.' Behind his passion was a family history of living in Croatia with Croats as friends and neighbors. 'I was born in Croatia. My parents were. They lived through WWII. All their relatives were killed in Ustasha camps. But it was also Croats who saved them. We have cases where we were saving as well as killing each other. I live in the conviction that we Serbs should have done more to prevent this. I had no fears. My father -- Croats saved him from a camp. He was 12 years old.'

While he didn't link Belgrade to crimes committed by Serbs against Croats in Croatia (at least in open session), he was steadfast in testifying that crimes were committed and that fear and hysteria were fanned by extremists who did not want a negotiated solution. ON redirect, the prosecutor succeeded to some extent in reviving his earlier testimony that the TO was likely subordinated to and paid by the JNA.

While Milosevic might have achieved high marks on cross examination the first day, he pretty nearly failed the next. Rather than ask the witness about events he took part in or had personal knowledge of, Milosevic returned to making speeches, commenting on the witness's testimony and arguing. As Judge May noted, he was trying to make his entire case through the guise of cross examining this one witness.

'You're going a long way from what the witness can deal with. He gave evidence he was arrested, charged with treason and espionage, detained in Belgrade . . . . There is not a word of cross examination by you on this. There remains a limit on what we'll hear on tu quoque, attacking the other side for crimes. You're on trial here and the evidence is being given against you. If you challenge evidence this witness gave then you must do so. It's your duty rather than putting your own case accusing others. That may not be relevant. I remind you about intercepted tape conversations with Karadzic. You should deal with crimes allegedly committed by the territorial defense and others.'

Milosevic countered that he was not putting on a tu quoque defense (one side may have committed crimes, but so did the other -- which is a defense not recognized by the Tribunal). 'My case is not what you say -- tu quoque -- because Serbia didn't commit any crimes. I'm talking about a civil war in Croatia. Serbia was not at war with Croatia and didn't commit these things. I have established through this witness that all units were local and Serbia didn't participate. This is not tu quoque. . . .'

While the Court pointed out that there was a limit to how much evidence it would hear in this proceeding about Croatian crimes against Serbs, Milosevic continued to question the witness about Croatian actions, including those of which he had no personal knowledge. In one colloquy, Milosevic asked the witness if he knew about weapons shipments to Croatia from East Germany and Panama. When the witness said no, Milosevic persisted, 'Do you remember the confiscation of a Boeing 707 from Uganda full of weapons?' Perhaps frustrated that Milosevic seemed unable or unwilling to heed the Court's repeated admonitions to stick to matters the witness knew about, Judge May interjected, 'Were you involved in confiscating a Boeing?' To which Witness C-037 answered, 'No. I heard about it from the media.'

When Milosevic also returned to events surrounding WWI, WWII, and earlier, the Court cautioned him not to question the witness on events that occurred before he was even born. 'Consider where your examination is going. You're asking the witness about events long before his birth. It seems you're claiming relevance . . . for 1991 and we'll need to consider an appropriate way of dealing with that. Your case is that the Serbs were in fear, which arose partly from events 50 years before. The prosecution's case is that your forces were responsible for crimes committed against the Croatian population. It is a conflict we'll have to resolve. There is not a great deal of point in asking this witness who wasn't born then.'

Not for the first time, the Court turned to the amicus for assistance in determining the scope of cross examination. 'Mr. Kay, how far can cross examination properly go?' In answer, the amicus said, 'There is a great deal of relevance but limited effect.' He emphasized that his 'great concern is that the accused put his full case rather than dealing exclusively with historical matters.'

The Court noted that it will allow two historians to testify, one from each side, but with this witness, Milosevic should focus on the evidence that relates to crimes charged against him in the indictment. That is the dilemma facing Milosevic -- whether to continue his grand defense of the Serbian people, who have not been accused here, or to begin mounting a real defense of himself against the most serious charges of crimes against humanity, war crimes and, in Bosnia, genocide.