The Trial of Slobodan Milosevic
On September 26, 2002, the trial of Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia (ICTY) entered its second phase. Milosevic, the former President of the Federal Republic of Yugoslavia, began his journey to the Hague as a legal matter when, on May 24, 1999, the first of three indictments against him was handed down. The indictment (the Kosovo Indictment), [1] charged Milosevic with the commission of war crimes and crimes against humanity for his role in the expulsion of more than 800,000 ethnic Albanians from Kosovo, [2] and the death of 900 others from 1998 to 1999. Milosevic's indictment was both legally and politically significant as it was the first indictment to be issued by an international court against a sitting head of state. In September 2000, Milosevic was voted out of office and relinquished his position as President of the Federal Republic of Yugoslavia. He was subsequently surrendered to the Tribunal on June 28, 2001 by Yugoslav authorities pursuant to an international arrest warrant, and although his rendition to the Tribunal was somewhat irregular, his arrest was generally well-received by the international community.
Following Milosevic's transfer to the ICTY, he was served with the two additional indictments that are the basis of the Prosecutor's current case. The first (the Croatia Indictment) was issued on October 8, 2001 and charges Milosevic with the commission of crimes against humanity and war crimes during the period 1991 to 1992, through his participation in a joint criminal enterprise which had as its purpose "the forcible removal of the majority of the Croat and other non-Serb population from . . . the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state." [3]
The second (the Bosnia Indictment) was issued a few weeks later on November 22, 2001. [4] The 29-count indictment alleges that Milosevic had both direct and command responsibility for crimes committed in Bosnia-Herzogovina during the Bosnian war, from 1992 to 1995. In particular, like the Croatia indictment, the Bosnia indictment charges him with participation in a joint criminal enterprise to "forcib[ly] and permanent[ly] remove[ ] . . . the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of . . . Bosnia and Herzogovina." [5] Importantly, it is the only one of the three indictments that charges Milosevic with the crime of genocide. [6]
On January 30, 2002, the ICTY Appeals Chamber held that all three indictments could be joined, reversing the Trial Chamber's decision to the contrary. The trial was scheduled to commence on February 12, 2002, and it was agreed that the charges relating to the Kosovo Indictment would be presented first. Because Milosevic refused to engage a lawyer or have one appointed for him, [7] the Tribunal ordered the appointment of three lawyers to serve as amici curiae on his behalf. [8]
Milosevic's trial opened with a dramatic statement by Carla Del Ponte, Chief Prosecutor for the Tribunal, who accused the former leader of conducting the wars in Kosovo, Croatia and Bosnia with "an almost medieval savagery" and "calculated cruelty." Milosevic, unrepentant and defiant, responded that the Tribunal was illegal and illegitimate. In a lengthy and bitter soliloquy, during which he showed video footage and submitted photographs in his defense, Milosevic categorically denied the truth of the Prosecutor's allegations and countered that any crimes that were committed in Kosovo were the result of NATO actions or the work of the Kosovo Liberation Army, not Serbian aggression.
As the first phase of the trial proceeded, Milosevic, who appears to have had significant support from behind the scenes, proved able in his own defense in spite of concerns about his health. He exhibited an extraordinary command of the facts and circumstances surrounding the atrocities which are alleged to have occurred, and demonstrated that he was more than capable in cross-examining witnesses. He vigorously challenged or damaged the credibility of several witnesses, and undermined the testimony of a key Prosecution witness, Serbia's former secret police chief Rade Markovic, who upon cross-examination largely recanted his prior testimony concerning Milosevic's knowledge of atrocities allegedly committed by the Yugoslav Police and army in Kosovo.
On September 10, 2002, after 95 days of hearings, the Prosecutor called its 124th and final witness in the Kosovo phase of the trial. While some commentators have suggested that the Prosecution has failed to produce clear evidence that Milosevic planned or ordered the atrocities in Kosovo, it clearly established Milosevic's effective command and control of Federal Republic of Yugoslavian police and army, and the involvement of those forces in attacks on Kosovar Albanian villages. In addition, a strong circumstantial case has been presented that Milosevic must have known of the attacks, and did nothing to prevent them or punish those involved, which would appear to satisfy the test for command responsibility set forth in the Tribunal's earlier decisions in the Tadic and Celebici cases. [9] Indeed, Milosevic's extraordinarily detailed knowledge of the events that took place, and evidence that was presented of a cover-up after the fact, cast doubt on his assertions that he had no direct knowledge of the crimes alleged. Testimony from Lord Ashdown, a senior European politician who witnessed the destruction of Albanian villages, and research presented by scientific experts to refute Milosevic's allegation that NATO bombings were responsible for the deaths of thousands of Kosovan Albanians should also aid the Prosecutor's case.The only consistent theme of Milosevic's defense has been his defiance of the Tribunal and its authority, which is unlikely to have a positive effect upon the three judges before whom he now stands.
On September 26th, 2002, the second phase of the trial began with opening statements by the Prosecution and the accused, and the Prosecutor is now scheduled to finish her case-in-chief in May. Under tremendous pressure from the Tribunal to streamline the proceedings, the Prosecution, which originally requested permission to call 560 witnesses, is intending to call only 177 witnesses, including the President of Croatia, the Former President of Yugoslavia, other military commanders and international figures. Both sides have complained that they have been unable to obtain the presence of key witnesses: Milosevic attempted to call several former NATO leaders including former President Bill Clinton in his defense, and Carla del Ponte has repeatedly stated her frustration at being unable to obtain cooperation from Belgrade and has hinted at difficulties with other countries in securing the presence of official witnesses. After a recess, the trial will resume and Milosevic will present his evidence. If the former President remains in good health, the trial should adjourn sometime next year.
Although connecting Milosevic to the commission of atrocities in Bosnia and Croatia, where he was not in direct de jure control, is more difficult in some ways than connecting him to the atrocities committed in Kosovo where his legal authority was clear, the Prosecutor has already established many of the facts relating to the Bosnia and Croatia indictment in earlier cases, making it difficult for Milosevic to now contest the facts. For example, with respect to the Srebrenica massacre, one of the major crimes of which he is accused, last summer the Tribunal convicted General Radislav Kristic of genocide for that massacre, finding it was the work of the Drina Corps of the Bosnian Serb Army (VRS) under his command. Moreover, in the Tadic case, the Appeals Chamber found that the Yugoslav Army exercised sufficient control over the Bosnian Serb army to render the conflict international in character. This holding was affirmed in the Celebici case. Those decisions are not formally binding on Milosevic's judges; however, they will obviously be highly persuasive and relevant to the instant case.
In her first statement to the Tribunal, Carla Del Ponte noted that the Milosevic trial would be complex, and would "test the very capacity of a modern criminal court to address crimes which . . . extend so far in time and place." [10] The case has proven complex, but not unmanageable; difficult, but not impossibly so. No doubt more surprises are in store for both sides before the end of this historic trial. Then it will fall to the judges to render a decision on the guilt or innocence of the accused, who faces a possible sentence of life imprisonment.
About the Author:
Leila Sadat is a Professor of Law at Washington University, and a member of the United States Commission on International Religious Freedom. She is a member of the Executive Committee and Executive Council of the American Society of International Law, and the author of The International Criminal Court and the Transformation of International Law: Justice for the New Millennium.
[1] Prosecutor v. Milosevic, Case No. IT-02-54, Indictment (May 24, 1999). The Indictment was subsequently amended twice. The second amended indictment was issued on October 29, 2001.
[2] Prosecutor v. Milosevic, Case No. IT-02-54, Second Amended Indictment, para. 63 (October 29, 2001).
[3] Prosecutor v. Milosevic, Case No. IT-02-54, Initial Indictment (Croatia), para. 6 (October 8, 2001).
[4] Prosecutor v. Milosevic, Case No. IT-02-54, Initial Indictment (Bosnia) (November 22, 2001).
[5] Bosnia Indictment, supra at para. 6
[6] The Prosecutor subsequently filed amended indictments which reduced the scope of the case, and in particular, indicated that it would not be seeking to prove that genocide was committed in relation to the Bosnian Croat population. Prosecutor v. Slobodan Milosevic, Case IT-02-54-T, Scheduling Order Concerning Amending the Croatia and Bosnia Indictments (Sept. 17, 2002).
[7] Milosevic argued that he has "no intention of appointing counsel for a nonexistent court." Prosecutor v. Milosevic, Case No. IT-02-54, Trial Transcript, p. 8632, lines 24-25, (July 25, 2002).
[8] The three are Steven Kay, Branislav Tapuskovic, and Michaïl Wladimiroff. A recent controversy has erupted with regard to whether Wladimiroff can continue to represent Milosevic, after he was quoted (or misquoted, it is not clear which) in a Dutch newspaper to the effect that the proof tendered by the Prosecutor in the Kosovo Indictment established Milosevic's guilt.
[9] In the Celebici case, the Tribunal held that a superior may be held criminally responsible if information comes into his possession that provides notice of offences being committed by subordinates. Prosecutor v. Delalic, et al., Case No. IT-96-21-T, Judgment, para. 393 (Nov. 16, 1998), aff'd Prosecutor v. Delalic, et al., Case No. IT-96-21-A, Judgment, para. 238 (Feb. 20, 2001) (holding that "[a] showing that a superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he had 'reason to know.'")
[10] Prosecutor v. Milosevic, Case No. IT-02-54, Trial Transcript, page 5, Lines 13-15 (Feb. 12, 2002).