State of the Trial Part I: The Prosecution Case Tightens

As the Milosevic trial winds down for a month-long recess, a series of witnesses have infused energy into the courtroom, tightened the prosecution’s case, indicated where the greatest challenges remain, and spotlighted the limitations of Milosevic’s habitual defense tactics. Milosevic has not wavered in his depiction of the trial as illegitimate or in his insistence that all suffering in Kosovo was the result of NATO bombing and KLA (Kosovo Liberation Army) terrorism. However, these refrains have lost a great deal of their punch in the wake of evidence from recent witnesses like K-32, a Montenegrin soldier in the Yugoslav army who witnessed his commander ordering soldiers to shell Kosovar Albanian villages, execute civilians, and plunder and destroy homes. When Milosevic attempted to lead K-32 into inconsistent statements by conflating different events in his questioning – a tactic that has succeeded with some survivor witnesses – K-32 called his bluff, stating at one point that “he [Milosevic] can’t confuse me.”

Such clear evidence is a vital counterpoint to the testimony given by Radomir Markovic on July 25 and 26. Milosevic handpicked Markovic to head the Serbian state security service in November 1998 after dismissing former chief Jovica Stanisic. Markovic is currently being prosecuted in Serbia for murder, and was escorted into court by U.N. guards. During his cross-examination, Milosevic called Markovic by his first name and used an informal Serbian mode of address. Markovic responded with total deference, affirming that the highest priority of the Serb leadership during the Kosovo war was the protection of civilian lives, that Serb military and police pleaded with Kosovar Albanians not to flee from their homes, and that the protection of the rights of prisoners of war was part of a sacred national tradition.

This was a preview of what the court is likely to hear when Milosevic mounts his defense next spring, and some observers were left wondering why the prosecution chose to bring Markovic at all. Yet the testimony confirmed several key elements for the prosecution’s case, including the fact that Milosevic received daily briefings about events in Kosovo from several different sources. It was also established that Milosevic approved of an order subordinating the police forces to the military in Kosovo, and that funds – in the form of foreign banknotes in suitcases - were transferred at his request from the Federal Customs Administration to the secret police and army. Bringing witnesses like Markovic is in some ways a necessary gamble for the prosecution; while he echoed Milosevic’s insistence that Serb forces committed no widespread crimes, his testimony also placed Milosevic squarely at the top of a well-informed chain of command.

The prosecution has meanwhile been working on a second front, bringing crime-based witnesses whose evidence overwhelmingly points to a planned campaign of destruction with recognizable patterns of attack across the entire territory of Kosovo. The challenge for the prosecution has been to present enough evidence on both fronts – that crimes occurred and that Milosevic was indisputably in charge – so that Milosevic’s responsibility emerges even in the absence of a smoking gun, such as a signed order or a top official willing to admit to planning crimes in Kosovo. Markovic’s testimony was an important contribution to this body of evidence, even if his statements in court were designed to defend Milosevic more than indict him.

Milosevic, on the other hand, is facing a different challenge as the case progresses. By treating nearly every shred of evidence as fabricated, Milosevic has left himself little room to maneuver when the evidence about a particular event eventually accumulates into something incontrovertible. A recent example emerged during testimony about the well-publicized incident of a refrigerated truck filled with bodies that surfaced in the Danube River on April 5, 1999, during the Kosovo war. The prosecution is seeking to establish conclusively that the bodies were those of murdered Kosovar civilians removed from the territory and dumped into the Danube in an effort to remove evidence of crimes.

It is further claimed that when the truck resurfaced, the bodies were secretly removed and buried in mass graves which were discovered later in the surrounding area, including on the grounds of a Serb anti-terrorism unit firing range abutting a military compound. On May 28, William Robert Fulton, a British detective and investigator for the office of the prosecutor, testified to the progress of the exhumations of the grave sites, which began in June, 2001. He testified that identity documents from missing Kosovar Albanians have been discovered among the corpses, and that The Spanish Institute of Toxicology has established DNA links between two of the bodies and families of victims of attacks in Suva Reka, in Kosovo.

The court has already heard testimony from the truck driver who transported bodies to the firing range (see the CIJ report “Court Erupts in Chaos, filed on July 4, 2002), and on July 22, it heard from the policeman in charge of the initial investigation of the incident, Dragan Karleusa. Milosevic attacked from all sides the possibility that the bodies in the refrigerator truck were those of Kosovar Albanian civilians, resulting in conflicting allegations. He asked Karleusa whether the bodies weren’t those of asylum seekers in a trafficking operation gone bad, whether they weren’t in an advanced state of decomposition (which would indicate death long before the operations in Kosovo), whether they weren’t dressed in KLA uniforms, and whether the entire investigation wasn’t a politically motivated campaign to pave the way for Milosevic’s extradition to the Hague.

Immediately after Karleusa, the prosecution called another policeman, Bosko Radojkovic, who was the on-site crime scene technician who photographed the truck as it was being hauled to shore. The photographs show human limbs dangling from a gash in the back door of the truck. Radojkovic took no photographs of the bodies in the truck, testifying that the local investigating judge refused to even look inside the vehicle, and that the head of the district police halted all activities and ordered the nighttime removal of the bodies. Afraid that patrol boats from Rumania across the river would see the truck and suspect foul play, Radojkovic had spray painted over the lettering on the truck, which identified it as belonging to a slaughterhouse in the city of Prizren, in Kosovo. Radojkovic also repaired the gash through which bodies were visible, and placed local license plates on the truck. Concerned by the potential effects of local gossip, and unsure what he had discovered, Radojkovic and other policemen also leaked a story that the bodies belonged to Kurdish asylum seekers.

Radojkovic testified that over the course of two nights, he and a group of other police unloaded 83 bodies plus body parts belonging to at least three additional corpses - including three human heads – and loaded them onto another truck that was sent upstream, in the direction of the sites of the mass graves later discovered in the area. Radojkovic identified the bodies as those of both men and women up to 70 years old, including two children, all dressed in civilian clothes, and all bearing wounds inflicted by blunt objects. He only noticed one body with a gunshot wound; that of a young man, naked to his waist, with his hands bound with wire behind him.

After the bodies were transported, the original truck was removed, and Radojkovic was ordered to destroy it the next day, first attempting to burn it, but ultimately resorting to explosives. Directly afterwards, he was hospitalized for exhaustion and high blood pressure, during which time he gave a statement to the investigating police unit headed by Karleusa. When the prosecution asked Radojkovic how he now feels about what he had been instructed to do, the witness responded that he had done what was necessary in the context of the war. The court was presented with testimony from a Serbian man who was neither a victim nor a planner of the policies promoted by Milosevic’s regime, but who was nonetheless asked to perform horrific and compromising tasks.

Milosevic was therefore presented with a challenge to his normal mode of cross-examination, and ended up wavering between two approaches. At times, his questions were meant to undermine Radojkovic’s credentials, or took the form of reprimands for not following standard investigative procedures. At other times, Milosevic tried to draw on potential sympathies, implying that Radojkovic had been exploited by the investigators who took his statement from the hospital. Milosevic concluded by saying, “we’ve had enough of this phantom refrigerator lorry,” and announcing that Radojkovic’s statement was “third degree hearsay” and filled with inconsistencies.

The rigidity of Milosevic’s defense strategy is being increasingly strained by the accumulation of evidence as the Kosovo case comes to a close. Now that the court has heard from multiple witnesses for each of the various charges, Milosevic’s dismissal of each witness as unreliable seems more of a rhetorical exercise than a legitimate interrogation of evidence. This defense tactic - which relies on demeaning and denying - is put into greater crisis when the witness being questioned is a member of the group Milosevic considers his own constituency: ethnic Serbs. Milosevic seemed unsure whether he should treat Radojkovic as incompetent (or even false), or as a fellow countryman exploited by a dishonest investigation. He wishes to deny all evidence, but he also wishes to be perceived by supporters at home as a heroic protector of people just like Radojkovic. Either way Milosevic turns, his suggestion that the refrigerator truck is a phantom creation is not a convincing reply to the policeman whose job it was to make the truck disappear, nor is it a convincing challenge to the weight of the evidence presented to date.