ANALYSIS: Milosevic Charge-sheet Almost Complete

A decade or so after the siege of Vukovar and the bombardment of Sarajevo, the Office of the Chief Prosecutor is now adding the final touches to the case against Slobodan Milosevic. After signing his indictment for Croatia, Carla del Ponte last week announced her investigative team is close to completing the Bosnian charge-sheet.

The difficult and complicated task of prosecuting the former head of state - who is so far refusing to nominate his defence lawyers - has set new precedents for the tribunal at almost every stage of the case. What Del Ponte signed on September 27 is technically only a "proposal" for an indictment. Only after a confirming judge has examined the supporting evidence submitted by the prosecution and concluded on that basis that there is a "prima facie" case to answer, will it become an indictment.

The public is normally informed of indictments once they've been ratified by a confirming judge, while the first one normally hears of a sealed indictment is when the accused either voluntarily surrenders or is arrested. Last week's announcement that Del Ponte had signed the Croatia indictment came both from the prosecutor's own office. The chief prosecutor is clearly confident that she does have the necessary evidence at her finger tips, but the judges might be forgiven for interpreting her undue haste to go public as a form of pressure.

Del Ponte had originally announced her new indictments at the first status conference for the Milosevic prosecution which concerns crimes committed in Kosovo. She announced that by October 1 she will sign two further indictments, relating to crimes which took place in Croatia and Bosnia-Hercegovina between 1991 and 1995.

That was on August 30, leaving her with only a month to fulfill her pledge. On September 27, with four days before the self-imposed deadline was due to expire, Del Ponte signed an indictment relating to as yet unspecified crimes in Croatia and passed it to the confirming judge.

Having partially achieved her target, she then announced that it would be several more weeks before the indictment for crimes committed in Bosnia-Hercegovina would be ready for signing.

But in this case the judges are not the only ones who might feel under pressure: the team of investigators in charge of the Bosnia part of the Milosevic case may now suspect their work is coming under scrutiny because they missed a deadline. Indeed, that could have been Del Ponte's intention.

When IWPR asked her several months ago how an indictment could have been issued for Kosovo when the conflict was still underway, while five years after the war ended in Bosnia and nine years after the fighting ceased in Croatia no indictments had been issued, she told us that she had been "putting the very same question" to her investigative teams.

A possible explanation for the delay over Bosnia came on Friday, when the chief prosecutor's spokeswoman, Florence Hartmann, said the forthcoming indictment for crimes committed there will include the most serious charge of Genocide, which does not appear on the list of charges for Croatia and requires an even higher burden of proof.

Hartmann insisted the Office of the Prosecutor already has a "strong case" against Milosevic in Bosnia, but is seeking "further clarification" before submitting the indictment to a confirming judge. "Out of respect for the victims and mindful of the great number of atrocities committed during the war in Bosnia, the prosecutor wanted to ensure that no incidents involving Milosevic are overlooked," she said.

The message seemed to be that the signing of the Bosnia indictment has been postponed while it is made even more detailed and comprehensive, so that the largest number of victims of Genocide - defined as a crime motivated by an intention to destroy an ethnic or religious group as a whole - can recognise their own suffering in the document and derive some satisfaction from seeing them acknowledged there.

So far, most, if not all, indictments issued at The Hague have been amended at least once before the opening of a trial. The one issued against Milosevic in May 1999 for crimes committed in Kosovo, was amended in June 2001 to incorporate the findings of an investigation that had concluded in the interim.

The prosecutor's office have also announced that it will be amended again by the beginning of November to include the findings of exhumations of the mass graves discovered earlier this year around Belgrade and in other parts of Serbia. However, in another new departure, the prosecutor's office have decided that the indictments for Croatia and Bosnia will be issued in their final versions with no amendments anticipated. Del Ponte will then request that the cases are joined, so that Milosevic will be tried on all three indictments in a single trial. As prosecutors fill in the final gaps in Milosevic's curriculum vitae for the period 1991-95, it will be most interesting to see which of the former president's activities, powers and responsibilities during that period are defined in the indictment as de jure and which as de facto.

Since much of the case against Milosevic will rely on establishing his role in the chain of command relating to particular crimes on the ground, the distinction is a crucial one. Indeed, the identification and delineation of the various decision-making channels, which sometimes overlapped, has undoubtedly been one of the most difficult challenges facing investigators and a major reason for the long delay in issuing the indictments.

For example, during the wars in Croatia and Bosnia, Milosevic was president of Serbia, which he delighted in reminding the world was "not at war". The military campaign in Croatia was conducted by the Yugoslav People's Army, JNA, over which Milosevic's office accorded him no official - or de jure - control.

Thus, in cases relating to JNA atrocities in Croatia, the burden of proof will require the prosecution to establish beyond reasonable doubt that Milosevic exercised effective, informal - or de facto - control over the JNA during that period. The same challenge faces the investigating team for Bosnia-Hercegovina, since the military campaign was started by a part of the JNA, which by May 19, 1992, had transformed itself into the Bosnian Serb Army, with Radovan Karadzic as commander-in-chief.

Investigators will also have needed to find a way of showing that Milosevic exercised de facto control over other protagonists. These include the leaders of Serbian communities in Bosnia and Croatia, various paramilitary formations that were dispatched from Serbia and units of Serbian special police which were active in these war zones.

Del Ponte's advance announcements of the Croatia and Bosnia indictments suggest that she is confident that the prosecution does indeed have the evidence needed to prove Milosevic's de facto control over protagonists on the ground. This suggests that a new round of indictments could also be in the offing, for if Milosevic's de facto control can be proven beyond reasonable doubt, then it would be illogical not to indict those with legal - de jure - control.

These men are unlikely to escape Del Ponte's attention in the near future, so the heads of the "rump" Yugoslav presidency Borislav Jovic and Branko Kostic, plus JNA generals Veljko Kadijevic and Blagoje Adzic, should be giving their futures serious consideration.

Those who exercised formal control over the infamous Red Berets and other special police units from Serbia that operated in Croatia and Bosnia, should also beware, as should the warlords, such as Vojislav Seselj, who threw their paramilitary weight behind Serbia's "non-war effort".

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.