Finding Milosevic's Fingerprints: The Commander in Chief had to have known
Day 92
Finding Milosevic's Fingerprints: The Commander in Chief had to have known
Day 92
As the final days of the prosecution's Kosovo case unwind, observers are wont to make their assessments on whether the Kosovo indictment has been proven. Of course, only the three judges hearing the case can do that and second guessing them is as hazardous as predicting the weather. Still, since the ultimate decision won't be made for some years, it may be useful for the public view of the trial to make some observations.
As Judge May has said in Court, the Milosevic case is a 'command responsibility' case. No one is arguing that he personally massacred civilians or drove them from their homes. Rather, his guilt is predicated on his position at the top of the heap and his power to call all the shots for Serbia and the FRY in Kosovo during the period of the indictment. The question on everyone's mind is 'has it been proved?' Has Milosevic been linked to the crimes described by over a hundred witnesses in the last six months?
Milosevic has challenged all crime-based evidence, which has required the prosecution to prove that thousands of people were killed and hundreds of thousands driven from their homes in dozens of similar operations over a wide area in Kosovo. Given Milosevic's position as president of the FRY and, therefore, Commander in Chief of the Army, proof of such a vast number and similarity of crimes tends to support the theory of his responsibility. First, because it shows a pattern, which implies planning at the highest levels, and second, because he was in charge and, in a totalitarian state (which the FRY was at least during the Kosovo War), it is incredible that he wouldn't be aware of criminal activity on that vast a scale, even if he hadn't participated in planning it. So, in this case, the crimes themselves, if proven, tend to establish the guilt of the accused.
But have those crimes been proven? The prosecution team has produced dozens of witnesses who testified to forcible deportation; theft and destruction of property, homes, means of livelihood; massacres and killings of civilians; destruction of religious and cultural institutions; and theft of identity documents by Serbian and FRY authorities. But the number of personal testimonies had to be seriously cut due to Court-imposed time limitations. Equally restricting, the Court refused to hear so-called 'summarizing witnesses,' OTP investigators Kevin Curtis and Barney Kelly, which the prosecution had counted on to provide the broad picture of its case.
As lead prosecutor Geoffrey Nice put it in his argument to the Court, '[T]here may be a difference between the Chamber and the Office of the Prosecutor as to what is a sufficient sample [of incidents], but on any reckoning, you can't go from one or two selected incidents and simply assume, in the absence of concessions or agreement by an accused, that this has been happening on a widespread basis and over a wide geographical area. It can't be done. You have to have, in some way or another, a reasonably sufficient sample. And if it isn't reasonably sufficient, then the Prosecutor might simply not be able, in all conscience, to argue the case that has been indicted and confirmed.' (Trial Transcript page 5939)
The Racak incident, according to the prosecution, is 'the paradigm event for the use of summary evidence.' Investigators collected nearly 60 witness statements about the events in Racak where 42 civilians were massacred. In the end, due to time constraints, they were only able to produce one live witness, supported by written statements of four others (Milosevic was allowed to cross examine all witnesses). As Mr. Nice pointed out, that is unlikely to provide a comprehensive view of what happened. His answer to the problem, which the court rejected, was to provide summarizing evidence from an OTP investigator who had reviewed all the statements. The intention was that the court would then know what additional evidence was available and could ask for more to be presented -- whether it favored the prosecution or defense.
Judges May and Robinson insisted that the 'heart of the problem' is the scope of the prosecution's case. According to Judge May, 'What you are setting out to do is to prove a case in detail. This is essentially a command responsibility case. . . . But you are setting out to prove extremely detailed events and a large number of them.' (Tr TR page 5935) Nevertheless, the scale of crimes helps support a conclusion of command responsibility.
In a case without a smoking gun, i.e. some insider who was in a position to hear the accused planning a campaign of ethnic cleansing and is willing to talk about it, guilt must be established by bits and pieces of testimony and physical evidence that do not alone prove guilt, but when assembled, lead to no other conclusion. In such a case, crime-based evidence not only shows crimes were committed, but points to the culprit. Discerning a pattern is like finding a fingerprint. Added to the rest of the evidence, it points to the accused.
The issue of the admissibility of summarizing testimony is before a panel of the Appeals Chamber on an interlocutory appeal. Its decision may well affect the outcome in all three joined indictments against Milosevic.
As Judge May has said in Court, the Milosevic case is a 'command responsibility' case. No one is arguing that he personally massacred civilians or drove them from their homes. Rather, his guilt is predicated on his position at the top of the heap and his power to call all the shots for Serbia and the FRY in Kosovo during the period of the indictment. The question on everyone's mind is 'has it been proved?' Has Milosevic been linked to the crimes described by over a hundred witnesses in the last six months?
Milosevic has challenged all crime-based evidence, which has required the prosecution to prove that thousands of people were killed and hundreds of thousands driven from their homes in dozens of similar operations over a wide area in Kosovo. Given Milosevic's position as president of the FRY and, therefore, Commander in Chief of the Army, proof of such a vast number and similarity of crimes tends to support the theory of his responsibility. First, because it shows a pattern, which implies planning at the highest levels, and second, because he was in charge and, in a totalitarian state (which the FRY was at least during the Kosovo War), it is incredible that he wouldn't be aware of criminal activity on that vast a scale, even if he hadn't participated in planning it. So, in this case, the crimes themselves, if proven, tend to establish the guilt of the accused.
But have those crimes been proven? The prosecution team has produced dozens of witnesses who testified to forcible deportation; theft and destruction of property, homes, means of livelihood; massacres and killings of civilians; destruction of religious and cultural institutions; and theft of identity documents by Serbian and FRY authorities. But the number of personal testimonies had to be seriously cut due to Court-imposed time limitations. Equally restricting, the Court refused to hear so-called 'summarizing witnesses,' OTP investigators Kevin Curtis and Barney Kelly, which the prosecution had counted on to provide the broad picture of its case.
As lead prosecutor Geoffrey Nice put it in his argument to the Court, '[T]here may be a difference between the Chamber and the Office of the Prosecutor as to what is a sufficient sample [of incidents], but on any reckoning, you can't go from one or two selected incidents and simply assume, in the absence of concessions or agreement by an accused, that this has been happening on a widespread basis and over a wide geographical area. It can't be done. You have to have, in some way or another, a reasonably sufficient sample. And if it isn't reasonably sufficient, then the Prosecutor might simply not be able, in all conscience, to argue the case that has been indicted and confirmed.' (Trial Transcript page 5939)
The Racak incident, according to the prosecution, is 'the paradigm event for the use of summary evidence.' Investigators collected nearly 60 witness statements about the events in Racak where 42 civilians were massacred. In the end, due to time constraints, they were only able to produce one live witness, supported by written statements of four others (Milosevic was allowed to cross examine all witnesses). As Mr. Nice pointed out, that is unlikely to provide a comprehensive view of what happened. His answer to the problem, which the court rejected, was to provide summarizing evidence from an OTP investigator who had reviewed all the statements. The intention was that the court would then know what additional evidence was available and could ask for more to be presented -- whether it favored the prosecution or defense.
Judges May and Robinson insisted that the 'heart of the problem' is the scope of the prosecution's case. According to Judge May, 'What you are setting out to do is to prove a case in detail. This is essentially a command responsibility case. . . . But you are setting out to prove extremely detailed events and a large number of them.' (Tr TR page 5935) Nevertheless, the scale of crimes helps support a conclusion of command responsibility.
In a case without a smoking gun, i.e. some insider who was in a position to hear the accused planning a campaign of ethnic cleansing and is willing to talk about it, guilt must be established by bits and pieces of testimony and physical evidence that do not alone prove guilt, but when assembled, lead to no other conclusion. In such a case, crime-based evidence not only shows crimes were committed, but points to the culprit. Discerning a pattern is like finding a fingerprint. Added to the rest of the evidence, it points to the accused.
The issue of the admissibility of summarizing testimony is before a panel of the Appeals Chamber on an interlocutory appeal. Its decision may well affect the outcome in all three joined indictments against Milosevic.
