Where's the Smoking Gun? A review of the Kosovo evidence reveals Milosevic's guilt

Television and movies have trained us to want smoking guns, eyewitnesses, cronies who betray their former partners in crime, and, best of all, dramatic courtroom confessions. But real life doesn't follow TV scripts. Nevertheless, prosecutors daily manage to put murderers, conspirators and other criminals behind bars. Even at The Hague Tribunal.

The following is a brief summary look at the prosecution's Kosovo case. Did they prove the charges? In outline form, these are the elements the prosecution is required to prove: 1. Crimes were committed against Albanian civilians in Kosovo in a campaign of terror and violence (deportation, forcible transfer, persecutions including sexual assaults, the destruction of cultural and religious sites and murder), AND 2. The accused is individually responsible for those crimes (by planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of these crimes; 'committing' refers to participation in a joint criminal enterprise and does not require actually shooting anyone), OR 3. The accused is responsible for the crimes as a result of his superior position over those who committed them (if he knew or had reason to know about them, failed to prevent them or failed to punish the perpetrators).

EVIDENCE OF CRIMES

Did the prosecution prove that crimes were committed? There seems little doubt. Over a hundred witnesses testified about the deportation, forcible transfer and murder of thousands of Kosovar Albanians. Soldiers testified about being ordered to kill Albanian civilians, burn their property and drive them out of their homes. The deportations and property destruction, often accompanied by massacres, followed a pattern. They occurred close in time, providing support for the prosecution's contention that the crimes were done as part of a campaign to cleanse Kosovo of its Albanian population. Serbian forces routinely confiscated and destroyed identity documents and license plates of Kosovar Albanian refugees. Islamic religious and cultural sites associated with Albanians were deliberately targeted by Serbian forces who damaged or destroyed more than one-third of all mosques.

While Milosevic may have brought into question the credibility of a few of the witnesses on certain points, he was not successful in discrediting the cumulative impact of their testimony. Though he's been promoting it for years, not all Albanians are liars. There is nothing to prove they lie any more or less than any other group of people. Every lawyer and judge knows that taking an oath doesn't guarantee absolute truth. They also know that witnesses, like anyone, can tell the truth about some things and not others. In earlier cases where witnesses denied knowing anything about the KLA, their further testimony that they witnessed the murder of unarmed civilians -- their relatives and neighbors -- and the torching of their villages and homes remains credible.

Though Court rulings required the prosecution to significantly reduce its case, a review of the evidence supports a conclusion that the vast scale of crimes has been proven. When the Court gave the Prosecution a date certain to end its Kosovo case (extended due to the accused's illness), the prosecution cut its victim witness list to one to two per crime site, supported by written statements from three to four others. The Trial Chamber's further ruling that Milosevic had the right to cross examine in court any witness providing written evidence further reduced time available for the prosecution to prove its case. When the Court also disallowed the prosecution's proposed 'summarizing witnesses,' it looked like it would be impossible to present sufficient evidence in a coherent manner to support charges of massive crimes. Nevertheless, the prosecution has done a creditable job.

In addition to hearing almost 100 victim witnesses, the Trial Chamber accepted into evidence two extensive reports documenting widespread war crimes in Kosovo: the nearly 600 page Human Rights Watch Report: 'Under Orders: War Crimes in Kosovo,' and the two-volume OSCE report, 'As Seen, As Told: An analysis of the human rights findings of the OSCE Kosovo Verification Mission October 1998 to June 1999.' The two people who oversaw the preparation of these reports, Fred Abrahams and Sandra Mitchell, testified about their methodologies and conclusions. Both said Serbian forces perpetrated widespread and numerous human rights violations and war crimes in Kosovo, before and during the war with NATO. The reports provide significant corroboration of witness accounts.

Another in-depth study was introduced by Harvard-affiliated expert Andras Riedlmayer who concluded that Islamic religious buildings and Ottoman-era cultural sites were targeted by Serbian forces and experienced significant destruction during the war. The sheer quantity of destruction, and his expert conclusion it could not have been caused by NATO bombs, tends to substantiate the prosecution's claim that it was part of a planned campaign of ethnic cleansing.

INDIVIDUAL RESPONSIBILITY (ICTY Statute Article 7(1))

All the of above is strong evidence that numerous and widespread crimes were committed by Serbian forces. But has the prosecution proven that the accused is individually responsible for this massive crime wave? The following provides strong support for the conclusion that it has.

Milosevic was the guy at the top. He had both de jure (by law) and de facto (in fact) control over the military and civilian authorities. As Radomir Markovic, former head of the state security service, said, 'The policy of a country is charted by its president with his associates, and the Minister of the Interior has to follow [it]. There is no doubt about that. The President creates state policies. We were only executive bodies who followed orders.' The constitution and laws provided that, as president of the FRY, Milosevic was commander in chief of the army. Markovic also testified that there was a single command for Kosovo with the police subordinated to the VJ, and paramilitaries incorporated into existing military units.

In addition, Milosevic had de facto control over the military through a back channel he created to circumvent officers who opposed use of the army in Kosovo. The Court heard about it from Markovic and also during Milosevic's questioning of John Crosland, British Military Attache to Belgrade. When Col. Crosland testified that General Pavkovic, Commander of the Third Army, had ordered the targeting of villages and civilians in Kosovo under orders from Sainovic or Milosevic, rather than his direct superiors, Milosevic stormed, 'Is it clear to you that his reaction to the situation on the ground must be and was in conformity with orders given down the chain of command? If it was outside, he would have to bear the consequences. I maintain he wasn't acting outside the chain of command.' To which Col. Crosland responded, 'In that case, you and Pavkovic must be responsible for what happened in Kosovo. The massive destruction of the civilian infrastructure.'

Numerous witnesses testified that Milosevic knew what was going on in Kosovo. Again, Markovic provided important evidence when he testified that he gave Milosevic detailed written daily briefings on Kosovo, plus additional ones as requested. When Ambassador Wolfgang Petritsch testified that the Serbian delegation at the failed Rambouillet negotiations had to contact Milosevic in Belgrade to make any decisions, Milosevic responded heatedly, 'Isn't it logical that the delegation should consult the president of the state on questions of paramount importance?' Similarly, NATO General Klaus Naumann testified that in his negotiating attempts to prevent a war in Kosovo, General Perisic took him and General Wesley Clark aside and said, 'If you want to achieve something, you have to seek another meeting with President Milosevic, since it's only him who can make the difference, and it's only him who can give the instructions.'

THE PLAN

The next question to consider is 'Where's the connection? If Milosevic was in charge, did he know about the crimes being committed by military and police forces in Kosovo?'

As the prosecution claims, he not only had to have known, he must have planned them -- or, at the least, been involved in the planning. Throughout the trial, Milosevic has derided witness testimony as lacking credibility because it is illogical. Using his measure, it is illogical -- indeed, it defies any logical explanation -- to maintain that a half dozen or more similarly patterned attacks, involving large numbers of troops, police and military hardware, could occur all across Kosovo in a two to three day period without planning and coordination at the highest level. The attacks, for the most part, were not against the KLA. They most certainly were not against NATO. Across Kosovo, Serbian forces attacked the civilian population in operations that began immediately after the first NATO bomb was dropped.

The pattern which reveals the plan was chillingly similar from one village to the next. First, the VJ surrounded the village and 'softened it up' by firing heavy weapons into it. Serbian police and infantry then entered the village on foot, shooting and burning property, going from house to house ordering inhabitants to leave or rounding them up. Some were killed on the spot. Money was often extorted from them. Men were separated from women, children and the elderly, who were ordered to leave Kosovo -- on foot, tractor or, in some cases, transportation organized by Serbian forces. In at least a half dozen incidents, the men who were separated were then killed. Sometimes, women, children and old folks were, too. Houses were burned, livestock killed, crops destroyed. The fact that nearly all refugees had their identity documents taken and destroyed at border crossings is further evidence of an organized plan to cleanse Kosovo of its Albanian population.

If anyone needed an expert to interpret what is logical to the most unsophisticated observer, General Sir Peter De La Billiere provided that expertise. If the wide scale crimes in the indictment were proven, he concluded, it could only have been done with 'the knowledge, support and maybe direction from senior ranks and, by implication, the political head of the army.' Military analyst Phillip Coo agreed. 'With this widespread nature, there is compelling evidence from which it can be concluded that the operations were planned and authorized at the highest level of command, i.e. the Supreme Command. . . .' Milosevic was head of the Supreme Command.

This is not, as Milosevic likes to characterize it, using the indictment to prove the indictment. Once the crimes are established -- and few observers argue they have not been -- they provide the smoking gun. It's a rather simple equation really. Crimes committed in a way that requires planning and coordination at the highest level + Milosevic has ultimate control = Milosevic planned the crimes.

There was additional evidence supporting this logical conclusion. Col. Richard Ciaglinski, who served with the Kosovo Verification Mission, testified that shortly before its evacuation on March 20, 1999, he was taken aside by a high level VJ officer. The officer, he claimed, took out a map to illustrate the options for Kosovo. 'Without any preamble, he told me exactly how the plan to deal with the KLA would take place.' At the conclusion, the officer said, 'And when we have finished dealing with the KLA, we will remove all the Albanians from the territory of Kosovo forever.'

Other witnesses told the Court about conversations with Milosevic where he discussed the need to readjust the ethnic balance of Kosovo. It was the platform on which he sprang to power in the late 1980's and, according to the testimony, he never lost sight of it. General Klaus Naumann provided a particularly chilling account of a conversation he and General Wesley Clark had with Milosevic, where Milosevic and Nikola Sainovic, Deputy Prime Minister and Milosevic's man in charge of Kosovo, were discussing the need to reduce the Kosovo Albanian population, to redress the ethnic imbalance. When they talked about a solution that would happen in spring 1999, the two NATO generals asked what they meant. Milosevic replied, 'We'll do the same what we did in Drenica in '45 or '46. . . . We got them together and we shot them.'

COMMAND RESPONSIBILITY (ICTY Statute Article 7(3))

In the alternative, assume there is no pattern, just numerous crimes -- thousands of civilians deported, thousands killed, massive property destruction -- there's room to suppose Milosevic didn't plan or order it. Perhaps the military and police were out of his control. Perhaps there were 'rogue' elements committing these massive crimes. Even if he didn't order it, the evidence shows Milosevic knew that his forces were committing human rights violations on a massive scale and did nothing to stop or punish it.

The alternative theory of guilt comes under the rubric 'command responsibility,' which is codified in the ICTY Statute as Article 7(3): 'The fact that any of the acts referred to in articles 2 to 5 [war crimes, crimes against humanity] of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'

Sir Paddy Ashdown visited him early on, before the Kosovo War broke out, to tell him about the massive assaults against the civilian population he'd seen: Serbian forces torching villages, destroying crops, driving thousands of people from their homes and out of the country. Mr. Ashdown warned him that if he didn't stop this, he would end up in The Hague, answering for war crimes, as did British Prime Minister Tony Blair in a letter that Ashdown delivered and OTP Chief Prosecutor at the time, Louise Arbour, in a series of letters.

Others claimed to have told him about the crimes being committed by his forces, as well. Over a period of years, Human Rights Watch published and sent to Milosevic and other Serbian authorities a series of indepth reports and documentation on crimes against humanity. Ambassador Knut Vollebaek, Chariman of the OSCE, saw Milosevic on three occasions in which he informed him of the atrocities being reported by KVM verifiers. On one occasion he described seeing massive numbers of refugees fleeing with meager belongings into Macedonia. Milosevic's flippant response was to suggest they were on a trip, having a picnic. At the outset of NATO bombing, Dr. Ibrahim Rugova and Adnan Merovci were put under house arrest, then brought to Belgrade for an audience with Milosevic. Both men testified that they told him of massive forced movements of the civilian population, as well as disappearances and reported killings of Kosovar Albanian leaders. When KVM head William Walker charged in the media that Serbian forces had carried out a massacre in Drenica, he was declared persona non grata and ordered out of the country.

The Tribunal has addressed the issue of Command Responsibility before, most notably in the 'Celebici' case, where four Bosnian Muslims and Croats who had various positions of authority in the Celebici prison camp were charged with war crimes. The convictions of three, including convictions for crimes committed by their subordinates, were upheld on appeal. For command responsibility under Article 7(3), the Court held that it is sufficient if the commander has information of a general nature that his subordinates have committed or might have committed war crimes. He is then put on 'inquiry notice,' i.e. he is required to inquire further to determine whether crimes have actually been committed. If he does not do so, he can be held liable under Article 7(3). Moreover, actual knowledge can be inferred from the circumstances, such as the number of crimes, the number of troops involved, etc.

The evidence shows that Milosevic had more than 'general knowledge' that his forces were committing numerous crimes against the Albanian civilian population across Kosovo. Yet, according to the prosecution's evidence, few disciplinary actions were taken and virtually none against officers for command responsibility. Indeed, nearly all officers received commendations, promotions or were retained in their positions.

COVER UP

Then there is the matter of the cover up. When someone acts to cover up a crime -- hide dead bodies, for example -- it is generally assumed they do it because they know what they've done is criminal and they don't want to be caught. In other words, it tends to prove knowledge and criminal intent. For those in authority, covering up a subordinate's crime is also a crime under Article 7(3) of the ICTY Statute, because it shows knowledge and failure to punish.

The trial did not lack for evidence of a cover up, leading all the way up to Milosevic. There was testimony that about 40 civilians were gunned down where they took refuge in a café in Suva Reka. From one of the survivors we know that the bodies were loaded on a truck. Some of those bodies along with others ended up in a refrigerator truck in the Danube. Under orders from Milosevic, the bodies were loaded onto other trucks, the refrigerator truck was blown up, and the bodies were reburied at a military installation near Belgrade. DNA has confirmed that 11 of the exhumed bodies came from Suva Reka. Forensic examinations concluded they died from gunshots, being hit by blunt objects or explosions. Some had their hands tied behind them. Other mass graves have been found in Serbia and await exhumation and identification.

In court, we heard of the cover up from a Roma man, who helped rebury the bodies, and from Serbian police. It can be traced to Milosevic through the then head of the State Security Service, Radomir Markovic, and through the former police commander for the region, General Caslav Golubovic.

When the bodies were discovered in Belgrade, authorities commissioned an investigation. Officer Zoran Stijovic took a statement from Markovic asserting that the cover up was ordered by Milosevic at a meeting where Milosevic, Markovic, General Djordjevic, head of the Public Security Service, Vlajko Stojilkovic, then Minister of the Interior, and others were present. Markovic's signed statement was produced in court. Seeing it in the presence of his old boss, Markovic claimed it was a 'loose interpretation' of what he had said and that he hadn't really read it before he signed it. Officer Stijovic came to court and called him a liar. He detailed the way the statement was composed -- dictated by him paragraph by paragraph, with Markovic reading, amending and approving each one before he signed the page. Stijovic's version was supported by the testimony of Olivera Antonic-Simic, who was present throughout the interview to type and print Markovic's statement.

Golubovic's evidence corroborated the above. When the refrigerator truck with Albanian bodies levitated out of the Danube in his district, he called Djordjevic for instructions. Djordjevic told him he'd have to check with the Minister (Stojilkovic) and call him back. On the return call, he passed on the Minister's order to get rid of the bodies. While he did not mention Milosevic, what Golubovic did learn corroborates Markovic's regretted statement about the meeting and who was involved.

CONCLUSION

If the prosecution has proved its case, Milosevic is guilty not merely because he was commander in chief and atrocities happened while hundreds of thousands of ethnic Albanians were forced out of Kosovo. He is guilty because the evidence shows the atrocities and the ethnic cleansing could only have happened if they had been carefully planned and organized and that this could only have happened at the highest level. The highest level was the Supreme Command, of which Milosevic was the head. He was not a figurehead. All of the evidence so far points to the fact that he was a dictator, and that he and his associates planned the campaign of ethnic cleansing, including the atrocities, to drastically reduce (if not eliminate) the Albanian population in Kosovo. The conclusion is based on facts and inferences therefrom, not on the mere position of the accused.

Those who think there is no 'smoking gun' need to take a closer look. At the very least, Milosevic has powder on his fingertips.

[Caveat: This is not an exhaustive review of the evidence. Nor does it pretend to 'weigh' it or judge which individual witnesses were credible and which not. That will necessarily determine the ultimate conclusions reached by the Court -- as will the case Milosevic presents, countered by any prosecution rebuttal witnesses. In addition,it's important to note that none of Milosevic's comments or questions are evidence, even when he would have it so.