Milosevic Defense for 4-6 May 2005: No forcible deportations from Pec and Dubrava prison deaths attributable to NATO bombing
Milosevic Defense for 4-6 May 2005: No forcible deportations from Pec and Dubrava prison deaths attributable to NATO bombing
Colonel Radovan Paponjak, former head of the Secretariat of the Interior (SUP) for the Pec area of Kosovo testified over the course of the past three court sessions that there was no discrimination against ethnic Albanians by the Serbian police forces, that there was no forced deportation of ethnic Albanians from Pec (at least none instigated by Serbian forces) and that scores of deaths at Dubrava prison in Istok were the result of NATO bombs and not a massacre by Serbian security forces.
Time a factor as Milosevic dwells on background, not substantive charges
To the great dismay of the bench however, this testimony was elicited only after lengthy questioning concerning few of the actual charges in the indictment. Instead, Milosevic began his examination by focusing on the background information alleged by the prosecution. For example, Colonel Paponjak described how he observed that no Albanian police officers were dismissed from their positions and that many senior posts were filled by Albanians. The point of this exercise was to rebut factual allegations made by the Prosecution in paragraph 87 of the indictment, which reads, 'Throughout late 1990 and 1991 thousands of Kosovo Albanian doctors, teachers, professors, workers, police and civil servants were dismissed…..' [All this may have been moot anyway as Colonel Paponjak also testified that he arrived at his post in Pec beginning in 1992.] Paragraph 87 is not a substantive charge, but only sets for background.
The accused also questioned Colonel Paponjok extensively about KLA activities in the Pec area. The judges quickly grew impatient with this line of questioning, which did not address the criminal charges of the indictment. (The previous week, the court heard moving testimony from the father of one of the Serbian youths killed at the Panda Café in Pec in a notorious massacre allegedly committed by KLA gunmen. The judges however, were hard-pressed in their ability to use this testimony in a manner that could support or refute the specific criminal charges of murder, deportation and persecution leveled against the accused.)
Judge Bonomy insisted that Milosevic 'come to the meat' of the issues in the indictment such as refuting charges that Serbian security forces deliberately killed inmates at Dubrava prison in Istok.
Scheduled for five hours of testimony, the witness has already testified for nearly 9. Furthermore, only 10 percent of the documents introduced through the witness had been translated, making it difficult for the bench to follow and hampering the Prosecution in their ability to cross examine. Judge Robinson admonished Milosevic noting that he had 'made inquiries and ha[d] been told you get most favored treatment, special treatment more than any other defendant' by the translation department. 'You've flooded us with documents' that were unusable (as they were untranslated) Judge Robinson scolded. 'You've flooded me with documents' Milosevic shot back. Judge Bonomy advised Milosevic that it was the accused's own fault as he did not use his resources properly – alluding to the fact that Milosevic has refused to take on legal counsel and that his ill-health has been exacerbated by the demands of running his own defense, which has led to the postponement of trial on many occasions.
During the 4 May 2005 session, proceedings went into overtime as the accused finally began addressing the deportation charges against him leveled in paragraph 63(e) of the indictment. Colonel Paponjak testified that he was present, on the ground in the center of Pec and on duty during 27 and 28 March 1999 when forces of the FRY under Milosevic's control are alleged to have gone house-to-house rounding up Albanians, setting homes on fire and shooting a number of people.
The accused, after being spurred on by Judge Robinson to have the witness testify specifically to the allegations of 63(e) stated that he witnessed no soldiers in the streets of Pec that day, that he heard no shooting and saw no homes burning. The witness also stated that the indictment was exaggerated in its description that 'soldiers and police were stationed along every street directing the Kosovo Albanians toward the town center.' Rather, he explained, police were stationed at major intersections directing traffic. (The witness had for some time been head of the traffic police.) While the description of the stationing of security forces is not the most important detail, the accused could use Colonel Paponjok's testimony on this relatively minor point to argue that if the Prosecution was sloppy in such minor details of indictment, other more important details could also be subject to criticism.
Instead, Colonel Paponjok wound up confirming that there was in fact a mass exodus of Albanians from the center of Pec. Colonel Paponjak testified that he saw no Albanians boarding buses or trucks in the center of Pec as the indictment alleged. He also denied that the police ever forced anybody to board a bus. But for the accused's sake, he should have stopped his testimony there. Instead, after denying that anybody had been 'forced' to get on a bus or truck, he said 'I neither saw nor heard people boarding buses, I heard of people leaving on buses, but others left by ox-cart.' He did not deny however that thousands had gathered in the Pec city center, were addressed by persons speaking in Albanian through bullhorns. He described a carnival atmosphere almost as if the ten thousand persons who appeared in the Pec city center had gathered spontaneously for a celebration, but never questioned what had driven them to the center and why they eventually fled toward the
Paponjak's next day of testimony concentrated on various reports that gave hard statistical evidence showing Serbs as well as Albanians had been apprehended by police forces throughout 1998 and that the police had conducted apprehensions and investigations in an even-handed manner (that is to say that the numbers did not overtly indicate singling out Albanians for arrest). This non-discrimination by police, Milosevic argued, was proof that there was no persecution committed by his forces. However, when it came to events in 1999 (the operative time period of the criminal charges in the indictment), the accused only shrugged and claimed 'the police acted the same way when it came to investigating crimes in 1999.' Judge Robinson again admonished Milosevic – 'You will conclude your examination in chief today' he ordered. Milosevic replied, 'I don't think so…this testimony is actually saving time as I could have put on 20 witnesses to testify' to what the current witness is saying. Milosevic did not complete his examination in chief on 5 May as Judge Robinson ordered and testimony continued into the next session. Direct examination is not yet completed as of the writing of this report.
Dubrava – NATO bombing the culprit according to defense
Finally Milosevic brought his examination to the Dubrava prison in Istok, site of what the Prosecution alleges was a massacre of inmates by Serbian forces and which Human Rights Watch has previously characterized as 'one of the worst incidents of the war.' (Human Rights Watch, Under Orders, page 244). The defense however, claims that the deaths at Dubrava prison were wholly attributable to NATO bombing. Colonel Paponjok had visited the prison personally and his SUP had issued a report on the bombing and resulting fatalities.
The accused presented several pieces of video footage showing bodies being pulled from rubble – a clear indication that in fact, some prisoners had been killed by the bombing. (N.B. the Prosecution does not deny that NATO bombed the prison and that several prisoners and guards were killed as a result). Several numbered markers were placed around the scenes indicating that an investigation was taking place. But this video had been taken on the 21st of May, whereas the alleged murders took place on the 22nd and 23rd of May. The accused then presented video purportedly shot on the 24th of May after another series of bombing – and – according to the Prosecution, a massacre where at least 50 inmates were gunned down by security forces without provocation. Many more bodies were shown lying in the prison yard or piled up in the prison commissary. The images were graphic showing several dismembered or disemboweled corpses.
The Trial Chamber grew weary of the presentation and Judge Robinson exclaimed 'there's nothing gained from showing these ghastly images.' The accused argued that the footage showed many more (as many as 93) killed at Dubrava than the 26 names listed in an annex to the indictment and that they were killed by NATO bombs. One possible reason for this tact was to demonstrate that the Prosecution had gotten its numbers wrong – that the OTP could only list 26 dead – allegedly killed by FRY forces, but that many more were killed as a result of the NATO bombing. Therefore, it may be impossible to tell who was killed by NATO and who was killed by alleged police fire calling into question of how the Prosecution arrived at the names of the 26 victims.
The sheer number of dead at the prison, filmed lying in the field or piled up in the prison mess hall demonstrated the difficulty in distinguishing the victims of bombing and the victims of Serb gunfire. This was what BBC correspondent Jackie Rowland attempted to testify to in August of 2002 (see discussion below in 'Recap of Prosecution's case on Dubrava'). However, Mr. Milosevic must bear in mind that in its indictment, the Prosecution actually alleges that approximately 50 prisoners were killed and that only 26 could be identified by OTP as victims of Serb fire. Prosecution witnesses have even claimed that as many as one hundred prisoners lost their lives due to the alleged Serb massacre.
While the accused played the first video showing bodies pulled from the rubble, he remarked quietly, 'some of these victims were listed as shot in the indictment.' This was not immediately followed up by the witness, Colonel Paponjok, nor by the bench. However during the witness's third day of testimony, Judge Robinson asked the accused 'Will you bring evidence about the names of those named in Schedule J [of the indictment]?' Mr. Milosevic claimed that 'the authorities did everything in their power to identify the bodies' including fingerprinting and photographing or videotaping by crime scene technicians. However, much of this information is not available to him as FRY officials were forced to leave it behind when they fled Kosovo in June of 1999. Milosevic need not show that every single person listed in Schedule J of the indictment as 'Killed at Dubrava' by his forces were actually the victim of NATO bombing – if he can show that just several victims were incorrectly attributed to his forces, he can introduce some reasonable doubt as to the credibility of the entire list. But he failed to identify a single name on Schedule J that could be shown to have died as a result of NATO bombs.
Recap of Prosecution's case on Dubrava
In August of 2002, the Prosecution presented evidence of a massacre at Dubrava, largely through Rule 92 bis witness statements such as that of Milaim Cekaj who testified and was cross-examined by the accused on the 29th of August. Mr. Cekaj's statement claimed that he and his fellow prisoners were instructed to line up in the prison yard on 22 May on the pretext that they were to be transferred to a prison in
Nearly three years ago, Mr. Milosevic challenged the witness's account of the killings by questioning the logic of why after such a horrific massacre the prisoners were then handed cigarettes and rations by the prison authorities and why nearly 800 survivors were transferred to other prisons in
In August of 2002 the court also heard from BBC correspondent Jackie Rowland who filmed several reports from Dubrava prison showing bomb damage caused by NATO attacks. Ms. Rowland's crew also came under fire by NATO during the filming of one of her segments. However, Ms. Rowland testified that many of the bodies she observed did not appear to have 'bomb' damage – that is to say, they were not covered in dust, rubble, charred, and they were relatively in tact. She largely confined her testimony to direct observations and would not be drawn into making conclusions about the cause of death as she was not a forensic expert. The trial chamber however did hear from an expert in 2002 during the Prosecution's case, Dr. Eric Baccard, the chief forensic pathologist for the Tribunal in Kosovo. Dr. Baccard personally did not perform any autopsies, but supervised and reviewed the work of teams that did. Dr. Baccard presented evidence that according to autopsy testing, of the corpses exhumed from gravesites near the Dubrava prison (who allegedly were killed at the prison in the period from 19 to 23 May 1999) 40% of the victims 'showed wounds that were related to the effects of explosives directly by shrapnel or by sulphur' and '37 per cent, suffered bullet -- gunshot wounds.'
The accused's cross-examination of Dr. Baccard focused on the possibility that some of the dead who did not bear any sulfur or shrapnel wounds were killed as result of a 'blast effect' of explosions (which cause lungs to collapse but may leave no visible scars). Dr. Baccard noted that without sufficient soft tissue remaining on the corpses, it was impossible to determine a cause of death for as many as 20 of the victims.
The Contempt Trial of Defense Witness Bulatovic
The contempt trial of Milosevic defense witness Kosta Bulatovic proceeded on 6 May 2005 before Trial Chamber III. Mr. Bulatovic is charged with one count of contempt by the Trial Chamber for 'willfully and knowingly obstruct[ing] justice, by contumaciously refusing to answer questions asked by the prosecutor.'
The defense, led by Registry-appointed lawyer Stephen Bourgon, presented two witnesses who testified as to Mr. Bulatovic's state of mind during his initial testimony when he refused to answer the Prosecution's cross-examination questions while Milosevic was out of court due to illness. The two witnesses claimed that Mr. Bulatovic felt uncomfortable testifying without Milosevic present for the following two reasons: 1) Milosevic was not there to defend the cross-examination against any aggressive questioning (and that even Milosevic's court-appointed counsel might have difficulty raising objections to); and 2) that Mr. Bulatovic believed that he might jeopardize Mr. Milosevic's defense case somehow.
Mr. Bourgon presented these arguments to show that Mr. Bulatovic did not have the requisite mens rea or criminal intent to obstruct justice – rather Mr. Bulatovic merely believed he would be handicapped in his ability to tell the truth if he proceeded without the accused Milosevic present and therefore asked politely to postpone his testimony until Milosevic's return. The legal argument proferred by Mr. Bourgon was that Bulatovic's behavior did not meet the standard for contempt enunciated in the charge – 'willfully and knowingly obstructing justice by contumaciously refusing to answer.'
Bourgon argued first that Bulatovic could not have willfully or knowingly obstructed justice because he himself believed he was aiding justice by merely postponing his testimony. Therefore without the requisite intent to obstruct justice, the charge could not stand. Judge Robinson responded that his intent could be inferred through his behavior. During the proceedings, all members of the bench attempted to persuade Bulatovic to testify, reminding him that safeguards were in place to protect Milosevic's ability to re-direct an examination following the Prosecution's cross, and also explicitly warning Bulatovic that he faced contempt charges if he refused to cooperate. In response, Bourgon noted that any delays to the proceedings were caused by Milosevic's absence, not Bulatovic's refusal to testify and that in fact, Bulatovic cured any wrong by eventually completing his testimony.
Analysis
Bulatovic attempted to assert both his own as well as Milosevic's rights in refusing to testify. However, when Milosevic eventually did return to court, he did not make any objections during the Prosecution's cross-examination. Furthermore, Mr. Bulatovic had no standing to assert Mr. Milosevic's rights – if Milosevic's rights or defense strategy was damaged, that was for him, and not Bulatovic to argue. Bulatovic's best argument was that he felt vulnerable on cross-examination and that only Milosevic and not court-assigned Mr. Kay or Ms. Higgins could defend him – Mr. Bourgon noted that Milosevic had been helpful in intervening over translations and concerning issues that only Yugoslav residents might be more keenly attuned to. But as mentioned above, this scenario did not bear itself out as Milosevic made no objections.
A finding of contempt will likely hinge on whether the bench considered Mr. Bulatovic's behavior 'contumacious' as existing jurisprudence from Trial Chamber III addressed this issue in a contempt charge against another witness who refused to testify. Mr. Bourgon wisely focused his argument drawing on the Trial Chamber's own reasoning.
So what does 'contumacious' mean? A previous witness for the Prosecution, K-12, refused to testify because he feared for the safety of his family and also because of the strain of confronting Milosevic in court. The Trial Chamber (May, presiding) dismissed the contempt charges against K-12 finding that his behavior was not 'contumacious' and defined 'contumacious' as 'perverse,' that is to say, behavior so outrageous as to be obscene or perverse. Certainly K-12's refusal was considered non-contumacious, however Judge Kwon dissented, defining contumacious as unreasonable, interpreting the term to mean an 'obstinate refusal to answer without reasonable excuse.'
We have seen behavior in the courtroom that could be considered 'contumacious' – in March, Foca indictee Radovan Stankovic shouted that he should not be sent to an 'Ushtaha-Mujahadeen Janamaheerja' court in
