ANALYSIS: Milosevic Hague Anniversary

In spite of occasional colds, whose timing and duration have raised eyebrows amongst the prosecution team, Slobodan Milosevic is physically and especially mentally in far better shape than when he arrived at The Hague almost a year ago.

When Milosevic turned up at the tribunal on the night of June 28, 2001, he had hit his lowest point, having been in free fall for nine months following defeat in the presidential elections of September 2000.

Everything had turned against him. Firstly the people, or more precisely, his voters let him down. Then on October 5, the army and police betrayed him when they refused to shoot the "mob" that had taken to the streets to demand his withdrawal.

Then followed an undignified arrest after a two-day siege of his villa and the humiliating transfer to the Central Prison in Belgrade. With his extradition to The Hague, where he went through the standard admission procedure to the UN Detention Unit, which included a routine strip search, Milosevic reached his absolute nadir. Since then, however, he has gradually recovered.

At his initial appearance before the judges on July 3, 2001, he seemed confused, lost and disoriented. He headed straight to the witness bench, probably assuming he would occupy centre stage in the courtroom. When the UN guards took him to the defendant's bench, he sat there, looking blankly at the audience as he waited for the judges to appear.

He predictably refused to enter a plea on the indictment against him. And when he attempted a speech about the "illegal court", his "fake indictment" and "NATO aggressors", Judge Richard May simply turned off his microphone. He left the court looking frustrated because, as he told a guard on his way out, the whole show had lasted "only 15 minutes".

Over the next two months in detention, until the first status conference on August 30, 2001, Milosevic consulted western lawyers gathered around the International Committee for the Defense of Slobodan Milosevic, ICDSM, and prepared a document entitled, Presentation on the Illegality of the

Tribunal.

On July 3 and August 30, Milosevic played to the domestic and international gallery, switching between Serbian and English in his address. Since he needed a global cause to attract a global audience, he first tried presenting himself as a martyr to the anti-globalisation movement. After September 11, he switched to emphasising his ten-year war against "terrorism", especially of the Islamic variety. He seemed truly to believe his place was not in The Hague but alongside Bush and Blair.

After The Hague had provided him with a new stage, audience and mission, Milosevic began to appear more like his old self with every appearance. Once more the old, self-confident, energetic, arrogant and sly politician emerged, a politician - moreover - who was not going to be "confused by facts" and who, as Ambassador William Walker recently described, believes that "when he said something, that made it true". He is truly astonished when the judges "fail to understand" this essential point and keep warning him that he will have to prove his "truths".

At the start of the trial on February 12, Milosevic gave up his "global cause" and began concentrating on his mission, largely for the purposes of his domestic Serbian audience.

Earlier Tribunal Updates have described Milosevic's mission as a form of "triple revenge" on Serbia. Namely, he aims to divide the country into "patriots" and "western lackeys", to prevent Serbia's reconciliation with its neighbours, and to exacerbate its conflicts with a world that is supposedly "plotting" against it.

Milosevic has seized every opportunity to tell Serbs back home that Serbia, its people, history and traditions are all on trial at The Hague, rather than he himself, so fostering the myths of innocence and "victimisation" to which his audience is already inclined.

But if Milosevic from The Hague has succeeded in bolstering an attitude of prejudice and suspicion against the tribunal, which is already present among a large portion of the Serbian public, he is not guilty of this alone.

Part of the blame rests surely with the ambivalent stance adopted by the country's new authorities towards the tribunal and the events of the last decade, especially the circles around the Yugoslav president, Vojislav Kostunica.

The fact that the trial started chronologically at the wrong end, beginning with the last of the three wars in which crimes were committed, has enabled Milosevic to exploit the Serbs' negative feelings towards NATO. This is because the allies' spring 1999 bombing campaign corresponds to the period covered by the indictment.

It has helped him to exploit a widespread prejudice against the Kosovo Albanians that long predated Milosevic's arrival on the scene, or the form of Serbian nationalism that he perfected for his own uses. The attitude of many Serbs to the Kosovo Albanians is, in fact, more "racist" than "nationalistic". They see them as a lower order of humanity rather than "second class" citizens.

Milosevic's revealed his own attitude towards the community in his cross-examination of Albanian victims and in his conviction that the court is hearing only a parade of "false witnesses" bearing "invented stories".

The widespread impression that the defendant has successfully denounced their "lies" has been strengthened also by the way the so-called crime-base witnesses (eye-witnesses of crimes) have been presented to the court.

Most of them have been forced to give their statements only in written form (under Rule 92bis). As a result, they only appear in court for cross examination, to answer questions put by the accused who naturally does not ask them about the suffering they and their families endured. Instead, he asks about the activities of the Kosovo Liberation Army or NATO bombardment.

Sometimes, they say dishonestly that they know don't know anything about this, often to defy Milosevic and on occasions because they fear revenge when they return home. It is for the court to assess whether this behaviour has compromised their statements about the crimes they survived or witnessed. The prosecution, obviously, maintains that it does not.

So far the crime-base witness testimonies have highlighted the patterns of action in the spring of 1999 conducted by the army, police and paramilitaries, which the prosecution insists were under the defendant's command and control. These patterns - concerning deportations, mass killings, persecution and the destruction of religious and cultural monuments - have been confirmed by statistical, historical, forensic and other experts.

But the court has yet to see much material evidence of a kind that is usually uncovered in a criminal investigation - in spite of the fact that after international forces arrived in June 1999, Kosovo became the scene of one of the largest ever on-site criminal investigations.

The prosecution planned to present some of the results of this

investigation, in the form of forensic analyses, photographs, videos, documents and other evidence, through "summarising witnesses".

This category included the head of the whole Kosovo investigation and investigators working on some of the most important individual segments, such as Racak. But the judges rejected their testimonies, maintaining that their statements would have no probative value as they were based on second-hand conclusions from witness statements and forensic and other

experts' reports.

Such testimonies have been allowed in other tribunal trials, where they were particularly important to the general public for the insight they provided into the complexity of the investigation and the scope of its results.

The prosecution holds that in the Milosevic case, the court has erred by excluding "summarising witness" testimonies and by capping the time allowed for the presentation of the prosecution's evidence. Last week, they filed an Interlocutory Appeal against these restrictions.

While the public has gained an impression that the prosecution lacks substantial evidence, largely because of the way the trial is being conducted, the prosecution claims it possesses an "enormous collection" and a "limitless field of evidence", which it may not present because of the limits imposed by the court.

The appeal says these limits "make little sense in a scientific age

and in a case of this magnitude".

It warns that the end result of this limit on the quantity of evidence

might even involve the whole trial having to be repeated "at an enormous cost" and entailing the "loss of the integrity of this international criminal process".

On June 28, the first anniversary of his arrival in The Hague, Milosevic was not present in court. This was not, of course, because of an anniversary celebration, but because he was recovering from a cold that had lasted two weeks. The trial is scheduled to resume on July 2. Although Geoffrey Nice is "a bit sceptical" about these frequent, long-lasting colds, no one doubts Milosevic will return to the courtroom and continue to take part.

The fact that he is participating in the process represents the single most important decision Milosevic has made in his first year in The Hague. This time last year, many feared he would take no part in the trial, or would refuse to appear in the courtroom.

The first chief prosecutor, Justice Richard Goldstone, has admitted that this was his biggest worry. "I am vastly relieved that he is participating," he said. "If he had remained in his cell and forced the court to hold a trial in absentia, that would have cast a huge, dark cloud over the credibility of the trial."

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