ANALYSIS: Milosevic Needs to Rethink Defence

After five weeks of the trial of Slobodan Milosevic, it is clear he badly needs to reassess his defense strategy, provided he can objectively assess what is going on around him in the first place.

Milosevic claims the massive deportations of Kosovo Albanians and the killing of thousands of civilians in the spring of 1999 were consequences of NATO bombardment and the terrorist actions of the Kosova Liberation Army, KLA. He believes Yugoslavia and Serbia were victims of a Western conspiracy, aimed at the enslavement of the Balkans. He says these are "indisputable facts", which he intends to prove through the interrogation of the 30-odd Western politicians he plans to summon as witnesses.

But this defense suffered a heavy blow last week, when Milosevic met defeat at the hands of Paddy Ashdown in his first exchange with a Western politician to enter the courtroom as a witness. The former leader of the British Liberal Democrats and future High Representative for Bosnia-Herzegovina defeated him in a duel on both factual and political levels. The latter may not be relevant to the discussion before the court, but it is important from the point of view of personal vanity and winning the favour of the audience for which both contenders - witness and defendant - were playing last week.

Even before Milosevic lost his duel with Ashdown, statistical analysis produced by a group of American scientists and presented in court by the project leader Patrick Ball had undermined the foundations of his defence.

By analysing a large quantity of data on the killings and the refugee flow in Kosovo in the spring of 1999 and data on NATO and the KLA actions, the scientists examined three hypotheses. The first was that the massive population movement and killings that ensued were a consequence of NATO bombardment. The second was that they were instigated by the KLA's acts. The third was that they resulted from the activities of Yugoslav security forces.

The analysis eliminated the first two. They concluded there was no causal relationship between NATO and KLA and the patterns of killings or refugee flow - their operations immediately preceded or coincided with the peak figures of refuge flow and killings in only a few municipalities.

In many more, NATO and KLA activity occurred after or long before the population displacement peak. The study said, "The findings are consistent with the hypothesis that action by Yugoslav forces was the cause of the killings and the refugee flow... The killings were deployed either to motivate the departures, or they resulted from this campaign."

The study authors highlighted that "a drastic reduction in the killings and refugee movement" occurred only when the Yugoslav government unilaterally declared a ceasefire over Orthodox Easter from April 6-10, 1999. Fewest killings were registered in this period and the refugee flow practically stopped, even though NATO and KLA greatly increased their activity.

In his cross-examination of Ball, Milosevic disputed the reliability of the data on refugees and killings, their methodology and their conclusions. He questioned Ball's objectivity by quoting his statement in July 2001, praising Milosevic's transfer on June 28 to The Hague. The witness confirmed his words, but said support for international humanitarian law did not call into question his scientific objectivity.

The foundation of Milosevic's defence was further undermined by Ashdown's testimony, which showed the ethnic cleansing and the killing of Kosovo Albanians started at least six months before the NATO air strikes.

Ashdown appeared as an eyewitness, not as a political expert. His testimony concerned what he saw or heard on visits to Macedonia, northern Albania and Kosovo in 1998, and his talks with the defendant that September in Belgrade. Ashdown said he had witnessed the Yugoslav army and Serbian police's "indiscriminate and punitive actions" against civilians before his meeting. In the Suva Reka valley, he counted 16 shelled and burned villages, and found civilian refugees in the hills who described the conditions under which they had to leave their homes.

Refugees from different villages described an identical pattern of action by the army and police, he said. This began with an ultimatum for the evacuation of the village, bombardment by tank and heavy artillery followed by the entry of armour and troops. The plunder of homes and the removal of goods by truck then took place, which Ashdown personally witnessed. Finally, the village was torched.

Before meeting Milosevic on September 29, 1998, Ashdown and the British ambassador in Belgrade requested legal advice from the Foreign Office and were informed that what they had seen counted as a violation of the Geneva Convention and as war crimes. They brought details of the relevant conventions and a copy of the Rome Statute of the International Criminal Court to their talks.

Ashdown said after telling Milosevic what he had seen, and its legal implications, the defendant denied the events, then admitting "some elements out of control" might have been responsible, before finally referring to a "legitimate struggle against terrorism".

Ashdown said he warned Milosevic on two occasions that indiscriminate military operations would inevitably incur international intervention, and that he risked being charged with war crimes. During the cross-examination, Ashdown reminded the accused of what he had said, "I told you in specific terms that if you went on acting in this fashion, the international community would have to act, and at the end they did have to act. And I warned you that you would end up in this court. And here you are!"

As usual in the cross-examination, Milosevic did not address facts provided by the witness but tried to steer the debate into a political discussion about NATO aggression and the legitimacy of the struggle against terrorism. To the despair of the judges, who warned both of them against it, Ashdown accepted Milosevic's challenge to such a debate and defeated him.

Even when he agreed with the accused in his description of the KLA as a "terrorist organization", Ashdown missed no opportunity to denounce what he could not accept. "Nothing, absolutely nothing of that [KLA actions] cannot in any way justify the excessive force used by the armed forces under your control, as a vengeance against the civilian population, and in direct violation of the international law," he said.

Equally, after confirming "the right of the Yugoslav forces to take action against terrorism", (to which Milosevic responded, "So, what is the problem, then?") Ashdown replied, "The problem is...the force that was used was excessive, indiscriminate, punitive and contrary to international law.

"You may say, Mr Milosevic, that it was necessary to shoot cattle, burn houses, break the stoves in those houses, urinate on those houses, as part of military campaign targeting an enemy. But, in my view, the only rational conclusion is that this was part of indiscriminate scorched-earth policy of a kind not seen since the days of the German occupation."

Milosevic's "conspiracy theories" to explain the disintegration of the former Yugoslavia fared no better. After the accused said the West had been trying to "enslave the Balkans" since the Austrian-Hungarian era, Ashdown replied, "I have heard some fantastic conspiracy theories from you, but I think this is one which will exceed all others. The idea that it is some great conspiracy of hegemony by Western powers to run other countries is I think so far-fetched that I cannot even believe you believe it."

In his courtroom duels with Ashdown, it seems Milosevic turned out to be less skilful a debater than he had been as a leader of Yugoslavia. Or, perhaps, the former just found it easier to spar with the latter now he is sitting on a courtroom bench as a defendant, rather than in his presidential armchair.

The accused should bear these changed circumstances in mind when drawing up a list of Western politicians to appear as defence witnesses in his trial. Now they have seen Ashdown's performance last week, they might warm to idea of appearing in the courtroom and telling him what they never dared - or didn't want to tell him - when they met in his presidential salon.

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