Milosevic's Cross Examination Not Up To Vukovar Testimony

With the world watching its assault on Dubrovnik, the Yugoslav Army (JNA) laid siege to Vukovar for three months with hardly an objection. In addition to destroying and damaging much of the town, the JNA targeted the Vukovar hospital. Its roof was marked with a large red cross; another red cross was made in the yard. For an army that showed little concern for the law or rules of combat, it must have seemed like an invitation. They shelled and bombed it daily. Yet it was a working hospital, with an ethnically diverse staff who treated JNA soldiers as well as wounded civilians – up to 90 a day on a regular basis.

Patients lined the hallways and were moved into the basement fallout shelter for surgery. Hospital staff were virtual prisoners due to the shelling. Medical supplies and food could not get in because the JNA had surrounded and cut off the town. Dr. Vesna Bosanac was Director of Vukovar Hospital throughout the siege. As the shells and bombs rained down, she sent fax after fax to the outside world – foreign ministers, international negotiators and the European Community Monitoring Mission.

Eventually, officials in Zagreb signed an agreement for the evacuation of Vukovar to begin November 18, 1991, under International Red Cross (IRC) auspices. When the IRC didn't arrive, Dr. Bosanac approached JNA authorities to find out what was happening. Despite assurances that the evacuation would go forward, no one from the IRC arrived until the next evening. By that time, the JNA was rounding up civilians and putting them on buses, destination unknown. Shortly after she met an IRC representative, Dr. Bosanac was detained by the JNA and held incommunicado. As a result, she did not see the JNA load several hundred people from her hospital onto trucks and drive them away. The bodies of almost 200 of them were later exhumed from a mass grave near the Ovcara Farm. Among them was her father-in-law.

Dr. Bosanac was held prisoner for three weeks, transported first to Sremska Mitrovica, then to Belgrade where she was interrogated and signed a statement 'under duress.' Her husband was also arrested and detained in prisons in Kamenica and Stojicevo, where he was 'brutally treated,' resulting in bruises, broken ribs and head injuries that put him into a coma. After their release, they visited Lord Carrington, where the Doctor 'insisted that he ask Milosevic to allow Vukovar to go free.' Vukovar remained under JNA control for four more years, while many of its citizens remained in prison camps until spring or summer of 1992. In addition to the several thousand who died during and after the siege, three hundred ninety-six of Vukovar's citizens have never been accounted for.

Dr. Bosanac appeared as a witness against Slobodan Milosevic, who is accused of responsibility for crimes committed in a joint criminal enterprise that sought to cleanse Vukovar of its non-Serb population in a quest for an enlarged Serbian State. The majority of Dr. Bosanac's testimony was introduced through a transcript from an earlier trial, a procedure permitted by ICTY Rule 92 bis D. Prosecutor Geoffrey Nice led the witness through a summary of the transcript, to which she added clarification as necessary. She also provided commentary to a videotape showing the Vukovar hospital under siege, including the appalling conditions in the basement surgery and the large hole left by an unexploded bomb that fell directly on the hospital, penetrated five floors, and landed on a patient. After her abbreviated testimony, Milosevic was allowed to cross examine.

Rule 92 bis is meant as a timesaver to prevent redundant and cumulative testimony and to provide a way to introduce noncontroversial background or historical evidence on matters not central to the guilt of the accused. As such, the rule allows the introduction of written witness statements in place of oral testimony (92 bis A) and transcripts of witness testimony in other trials (92 bis D). The Court need not allow cross examination where the testimony does not concern matters bearing on the acts or conduct of the accused or a critical element of the prosecution's case.

In the Milosevic case, Trial Chamber I has followed a practice of allowing cross examination for 92 bis A written statements, a practice which, though entirely defensible, has added considerably to the length of the trial. The transcript of Dr. Bosanac's testimony in another case was the first transcript allowed under 92 bis D. While the Court also required cross examination, it has not yet ruled on prosecution motions that seek to substantially limit cross examination on 92 bis evidence in the remainder of the case.

For Milosevic's part, he has not yet learned to use his time wisely and well. Nor does he believe it is in his interest to do so. While he is participating fully in the trial, he is doing so on his own terms, predominant of which is representing himself. Stating that he does not recognize the legitimacy of the Tribunal, he attempts to make his case to his public, regardless of whether it serves his legal interest or not. While history will ultimately judge whether he succeeds with the public, the Court will judge his guilt or innocence much sooner. He is doing little to help himself with that body.

Milosevic's position in regard to the Vukovar hospital massacre appeared to be: 1. if it occurred, it was carried out by paramilitaries; 2. the JNA was in Vukovar trying to protect civilians and had nothing to do with the massacre that occurred after evacuation; 3. even if it did, Milosevic was president of Serbia and had no control over the JNA.

To discredit Dr. Bosanac's testimony, Milosevic used the 112 page handwritten statement she made while under arrest and in the custody of the JNA in Belgrade. The witness testified that she made it under duress in order to secure her release. She had been held in solitary confinement, heard other prisoners' cries and seen the result of their beatings. Milosevic read from her statement, 'I thank him [Colonel Branko, her interrogator] for his humane conduct and for giving us hope there are people within the JNA who would like to have peace.' The statement hardly undermines her testimony about the JNA's sustained shelling of the Vukovar Hospital. If anything, it shows her opinion that the colonel was an exception to the otherwise criminal actions of the JNA. When he persisted in questioning her on this subject, her gave her the opportunity to say just that. 'The truth is that Colonel Branko was correct towards me. . . . But what I saw in the camp was quite different. He was an exception for the way he treated me.'

Undeterred, Milosevic also offered statements written by her colleagues under similar situations of duress. According to the Accused, Dr. Bosanac’s colleagues accused her of allowing Croatian National Guards and police forces on the hospital premises, weapons to be stored there and snipers to fire from the hospital roof. The Doctor denied all the accusations and suggested Milosevic call her colleagues to testify. Most of them continue to work with her in the hospital even today.

Milosevic continued to fire a long list of accusations at Dr. Bosanac (including that Serbian patients in the hospital were intentionally murdered), then asking if she hadn’t been referred to as Dr. Mengele (Dr. Mengele was the Nazi doctor responsible for horrific medical experiments). The witness retorted that it was Milosevic’s press that referred to her in this way.

Milosevic presented a letter he claimed the witness had handwritten to a JNA officer, threatening that if one vehicle left the JNA barracks, even an ambulance, it would be destroyed. Dr. Bosanac denied ever seeing the letter before and declared it was a forgery. On redirect examination, she pointed out discrepancies between the handwriting in that letter and her handwritten statement which she had authenticated.

It is unknown whether Milosevic was scoring points with his public with his accusatory cross examination, but he clearly was not impressing the judges. In frustration, Judge May lectured, “You have to understand that it is not a defense to attack the other side. The war crime of which you are accused is what happened at Ovcara. You choose to spend your time attacking the other side, but we need to know your position regarding the killings. Merely attacking the witness is of no assistance.”

Certainly, attacking the credibility of a witness is appropriate cross examination, but like all cross examination it must be strategic to be effective. A lawyer conducts it with the decision-makers in mind, whether judge or jury. Ad hominem (against the person) attacks are dangerous because they so often generate sympathy for the witness. That was certainly true in Dr. Bosanac's case. On the stand she spoke softly, apparently worn down by the great traumas she suffered and witnessed. Milosevic's press may have characterized her as a Dr. Mengele, but in court she seemed more like a Florence Nightingale. She was a doctor with responsibility for the lives of thousands in the midst of war. Under horrifying conditions, she kept her hospital operating, treating civilians of all ethnicities and combatants from both sides. She was arrested, detained and interrogated. Her husband was treated brutally; her relatives, friends and colleagues were killed. Despite Milosevic's relentless attack, she held firm.

While Milosevic's cross examination likely did not sway the judges, it goaded the witness into providing more details about the JNA's role in the Ovcara massacre. When Major Sljivancanin entered Vukovar Hospital on November 20, he brought doctors from the Military Academy with him and declared the hospital was under their authority. It was under their authority that 200 people were taken from the hospital, loaded onto JNA trucks, driven to Ovcara farm and killed, as Milosevic gave the witness the chance to point out.

Milosevic spent considerable time on his assertion that defenders of Vukovar had taken refuge in the hospital before the evacuation where they changed into civilian clothes. It finally prompted an intervention by Judge May: 'What I question is the relevance of whether there were guards dressed as patients. Are you saying it in any way justifies them being taken to Ovcara and executed?' While it is arguably relevant on the issue of the Doctor's credibility in light of her denial that there were such persons, it gets Milosevic nowhere to continue focusing on this issue. As the Court has pointed out to him on numerous occasions, he can call his own witnesses in due course. In the meantime, it makes it appear that he considers this a defense to the massacre.

In the legal profession, cross examination is sometimes referred to as an art. It takes a great deal of skill, experience and thought to develop an effective cross examination strategy for each case and, indeed, each witness. Unskilled in the law, Milosevic's style is the kind that is most effective when accompanied by bright lights and brass knuckles. It is not a style designed to impress a bench of professional judges. In the cross examination of Dr. Bosanac, it was unlikely to convince any but Milosevic's solidest supporters.