ANALYSIS: Milosevic Attacks Amicus Curiae

If the duty of the amicus curiae is to protect the interests of the accused, then Michail Wladimiroff did the right thing.

A day before the presentation of evidence for the Kosovo indictment was completed, a Dutch newspaper quoted Wladimiroff as saying that if the trial "was only about Kosovo and one had to draw a balance now, Milosevic would certainly be convicted".

The amicus curiae (friend of the court) - a lawyer appointed by the court to assist the judges - clearly believes that things are looking bad for the accused, who appears totally unaware of the gravity of the situation.

And there is no doubt that Milosevic's interests are served by being candidly informed of his prospects at an early stage of this marathon trial.

In the same newspaper story, Wladimiroff was also quoted as saying the prosecution had established "a clear link between the police and the army, the massacres in Kosovo, and Milosevic". He concluded that it would be in Milosevic's best interest to stop playing a "losing game" and finally engage professional defense counsel.

The day after Wladimiroff's remarks appeared in the media, Milosevic accused him of contempt of court and the "obstruction of justice". In his defence, the amicus curiae, speaking in court, said the aim of his reported remarks - which he said had been "freely interpreted" by the newspaper - was to point out that at " this stage of the trial, on the face of what has been said, there is a kind of relation between the accused and what occurred in Kosovo... but it is a matter for the court to decide".

The presiding judge, Richard May, tried to minimise the incident, repeating his well-known opinion that a trial chamber comprising professional judges can take no interest in "what some newspapers have published", but may only reach a decision on the basis of evidence and arguments presented in court.

However, Judge Patrick Robinson opined that the Dutch attorney's reported remarks might call into question his qualifications to continue as a friend of the court. Judge O-Gon Kwon declined to comment on the episode, saying only that Wladimiroff should state his position in writing for further consideration by the chamber.

The "Wladimiroff case" is likely to be resolved before prosecution evidence for the Croatia and Bosnia-Herzegovina indictments begins later this month.

Milosevic's looks and general behaviour on the last day of evidence for the Kosovo indictment showed that the Dutch attorney's published remarks had been like a bucket of cold water.

This did not mean, however, that the media story had in any way forced him to confront reality. On the contrary, it merely redoubled his defiance.

The defendant claimed the amicus curiae's intention was to try to improve the media image of this "failed" Kosovo indictment, which has been "blown to piece" over the last seven weeks of the trial.

Milosevic's latest theory also involves "the quisling regime in Belgrade" whose tame media "swallowed the bait" by hurrying to publish the friend of the court's views on what the prosecution has allegedly succeeded in proving in the Kosovo indictment phase of the trial.

Any attempt to predict the trial chamber's conclusions on the basis of witness statements and other evidence, especially at this early phase ("in the first third of the first half of the game", as Milosevic put it, using sporting jargon) is as unreliable as trying to forecast the weather.

But Wladimiroff is no ordinary observer. He is an active participant in the trial and his opinions can be taken as well-informed speculation.

He also has long experience as a tribunal defence attorney and is therefore familiar with judges' ways of reasoning and the procedures of interpreting evidence.

After 22 working weeks and 124 witnesses, the presentation of evidence for the Kosovo indictment was brought to an end last week. But this isn't the end of the matter. In due course, the prosecution will bring forward some witnesses who will speak solely about Kosovo and others who will link events from all three indictments and the roles played by the accused in them.

About two-thirds of the witnesses heard so far were so-called crime-basis witnesses, who in most cases testified in writing, under Rule 92bis. The public usually heard only summaries of their statements and their answers to questions from the accused. And these rarely concerned the essence of their testimonies, namely the crimes committed against them or crimes they had witnessed.

In spite of these limitations and the fact that many stories by the victims and

eyewitnesses were never told, the testimonies that were heard were supported by a good deal of evidence.

This included forensic material; the exhumation of mass graves in Kosovo and Serbia; the findings of investigators at the crime scene; and by expert studies on mass movements of the population and the destruction of the religious and historical monuments of the Kosovo Albanians.

The extent of the deportations, mass killings, destruction of villages, religious and cultural monuments and their systematic and widespread character, have supported the claim that everything was planned, organised and coordinated.

The testimonies of the international observers present in Kosovo from autumn 1998 to spring 1999 as OSCE Verification Mission members provided evidence that the army and police were heavily inclined to use force disproportionately and indiscriminately in their campaign against the Kosovo Liberation Army.

In court, it was alleged that at the slightest provocation, or even without any provocation, they would open fire with heavy weaponry on civilian settlements, burn houses, drive out or kill civilians, destroy crops and kill livestock. Verification mission members frequently warned Milosevic and his commanders against the use of such disproportionate and indiscriminate force, but they did not care, it was claimed.

Some western politicians, like Paddy (now Lord) Ashdown, warned Milosevic back in 1998 that if he continued, he would "end up in The Hague". He did not take this seriously. Milosevic and 12 of his associates among political, military and police chiefs received the same warning in 1999 from the then tribunal chief prosecutor, Louise Arbour. Milosevic again disregarded the warning.

Western politicians, diplomats, soldiers as well as Kosovo Albanian representatives with contacts with Milosevic during 1998 and 1999 testified that the accused was undoubtedly informed of everything going on in the province and that he had the final say in all decisions concerning events there.

One such witness, the former head of NATO's military committee, General Klaus Naumann, testified that in October 1998, after several drinks, Milosevic had boasted in his presence and in that of the alliance's commander General Wesley Clark that he would solve the Kosovo problem in spring 1999 "after the Drenica model of 1945-46": that is, he would "bring the Albanians to one place and kill them all".

As General Clark is included in the list of tribunal witnesses whose appearance is being negotiated with the US administration, he is likely to be asked to recall his memories of this meeting before the court.

The evidence concerning the removal of the traces of crimes not only provides proof that crimes were committed but also of Milosevic's responsibility for them.

No one hides crimes committed by another. The refrigerator truck in the Danube and the mass graves in Serbia clearly are not hiding victims of the KLA or NATO.

DNA analysis presented towards the end of this phase of the presentation of evidence established a link between the bodies found in the mass grave in Batajnica, near Belgrade, with victims from Kosovo.

The court heard a statement by the former head of the Serbian secret police, Radomir Markovic, which said Milosevic personally issued the order to remove the bodies of Kosovo civilians at a meeting in March 1999.

In his testimony before the tribunal at the end of July, Markovic retracted his reported words, saying they were a "free interpretation" of what he had said to his former police colleagues.

But two secret police employees, who took the statement in July 2001 and signed it together with him, claimed Markovic was not telling the truth. Their version of events greatly irritated Milosevic, who seems to believe Markovic is the only one of 124 prosecution witnesses to have told the truth, while everyone else was lying.

Milosevic will have to work hard to persuade the trial chamber to accept his theory that the mass graves found in Serbia were "a set up" organised by the "quisling government" in Belgrade in collaboration with The Hague prosecution and probably KFOR. The Kosovo bodies, he insists, were transferred to Serbia last year, not in 1999.

Last but not least, in the final phases of its presentation of evidence, the prosecution produced two military experts to analyse the structure, doctrine, command system and tactics of the Yugoslav armed forces. Both experts - British General Peter De La Billiere and Canadian intelligence officer Philip Coo - reached the same conclusion.

They described the Yugoslav army as a well organised and disciplined force with a "clear, simple and uninterrupted chain of command - going from President Milosevic down", and said the operations described in the indictment - provided they were sufficiently proven - could only have been carried out under the direction and authorisation of the highest military and political authorities.

Bearing all this in mind, the controversial opinions disclosed by Wladimiroff, which may result in the Dutch attorney losing the position of amicus curiae, seem no more than a "statement of the obvious".

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