ANALYSIS: New Phase in Milosevic Trial

The Milosevic trial, yesterday, September 26, enters a new phase with the prosecution attempting to establish a connection between the defendant and war crimes committed in Croatia and Bosnia in the first half of the 1990s.

The task will in some respects be more difficult and in others easier than the Kosovo phase of the trial.

It is more difficult because Milosevic's connection with the forces responsible for crimes in Croatia and Bosnia is less clear than it was in Kosovo. In 1999, as Yugoslav president, he was de facto and de jure commander of the Federal army and Serbian police deployed in Kosovo.

In the period covered by the indictments for Croatia and Bosnia, however, the defendant was Serbian president - and Serbia, as he then insisted, not without a boast, "was not at war". On the contrary, as he stated in his opening statement at the beginning of his trial in February, he and Serbia "fought for peace" in Croatia and Bosnia.

The prosecution, however, will find it much easier to prove that the alleged crimes in Croatia and Bosnia actually occurred, as they have already been confirmed in more than a dozen tribunal trials and judgments.

Those judgments established that the atrocities had a “systematic and widespread character”, so qualifying them as crimes against humanity, and that they were committed in the context of an international armed conflict, classing them as grave breaches of the Geneva Conventions. Moreover, crimes such as the Srebrenica massacre have already been judged as genocide.

Milosevic will of course challenge these “adjudicated facts” but the prosecution - supported by abundant evidence, from more diverse sources than was the case with Kosovo - should not have much problem proving them again.

One of the key challenges for prosecutors putting together the Croatian and Bosnian charge sheets was to establish a connection between Milosevic and the structures under his de facto or de jure control and the Serb political and military leadership in the two republics, under whose direct command the crimes described in the indictments were committed.

The prosecution will have to prove its main thesis, identical in both indictments, that from 1987 until late 2000 Milosevic was "the dominant political figure" in Serbia and Yugoslavia and "acquired control of all facets of the Serbian government, including the police and the state security services".

From this position, Milosevic "participated in the joint criminal enterprise" whose stated purpose was "the forcible and permanent removal of the majority of non-Serbs from large areas" of Croatia and Bosnia "through the commission of crimes".

The prosecution will also have to prove its contention that in Croatia and Bosnia, Milosevic "exercised substantial influence over, and assisted, the political leadership" of the local Serbs, and in both cases "provided financial, logistical and political support" to their military, police and paramilitary forces.

They will have to prove that Milosevic personally took part in formulating, preparing and executing a plan for the forcible removal of non-Serbs from targeted regions of Croatia and Bosnia.

How is the prosecution going to prove this? Its pre-trial brief for the Croatia and Bosnia indictments published in late May remarked that "evidence of planning will not only be direct (including witness statements and documentary evidence) but also circumstantial. In Croatia, there was a shared understanding that there was a general policy to remove Croats from the SAOs (Serb Autonomous Regions) and RSK (Republic Srpska Krajina), and that this policy was approved and partly implemented by leading figures from the Republic of Serbia”.

It adds that in Bosnia "numerous statements and intercepted telephone conversations between the Bosnian Serb leadership (and in some cases the accused) and the pattern of crimes indicate existence of a similar policy. In general, the widespread and simultaneous illegal actions taken by JNA (the Yugoslav National Army) and paramilitary troops throughout the territory of Croatia and BiH (Bosnia-Hercegovina) indicate coordination and could only have been accomplished through significant advance planning involving the accused".

The prosecution has revealed the number but not the identity of the witnesses appearing in this second phase of Milosevic's trial. They total 177 - 71 for Croatia and 106 for Bosnia. A number, especially insiders, experts and international witnesses, will cover both indictments.

The prosecution plans to treat the Croatia and Bosnia cases as "a single case" and to demonstrate "interconnections" and a "common general course of these events". The head of the prosecution team, Geoffrey Nice, has said the first 50 or 60 witnesses, testifying before the mid-December Christmas recess "will offer a comprehensive overview of the events from both indictments".

Another difference from the Kosovo phase of the procedure is that so-called crime base witnesses - speaking or submitting written statements about concrete incidents or crimes - will only appear towards the end of the presentation of evidence, which is supposed to finish by May 16, 2003.

The prosecutor’s pre-trial brief conceals the witnesses' identity through code-names. So far only one code-name can be "deciphered" with confidence. Witness B-1230 must be the Croatian president, Stipe Mesic, as this witness will tell the court how he organised the secret meeting between Milosevic and then Croatian president Franjo Tudjman on March 25, 1991 at which they agreed on a division of Bosnia.

Mesic has already publicly testified about these events in the trial of the Serbian mayor of Vukovar, Slavko Dokmanovic, and in closed session in the trial of Croatian general Tihomir Blaskic, for crimes committed in central Bosnia.

Other evidence specified in the pre-trial brief refers to documents ranging from combat and other military reports from JNA and Serbian forces in Croatia and Bosnia to minutes from closed meetings at various levels - from the Yugoslav presidency to secret meetings of the Bosnian and Croatian Serb assemblies and meetings of the Serbian war presidencies and crisis staffs in various municipalities in the two republics.

There are transcripts of talks held between Milosevic and Bosnian and Croatian Serb delegations, documents on arms deliveries, Republika Srpska army payrolls paid from Belgrade and other documents relevant to the prosecution’s case.

As well as a huge number of documents, there are numerous recordings of intercepted telephone conversations between Milosevic and the Bosnian Serb leader Radovan Karadzic dating from May 1991 to February 1992, in which they discuss their plans to take over power and arm Bosnian Serbs with JNA weaponry, and that they will “disappear” if they refuse to accept Belgrade and Pale diktats. Two intercepts, with very incriminating contents, have been played in court already as a part of Nice's opening statement at the start of the trial on February 12.

Generally, Karadzic was the most popular target for eavesdropping among those listed as participants in the “joint criminal enterprise”. As well as communications with Milosevic, there are intercepts of Karadzic's conversations with Yugoslav army generals Blagoje Adzic and Nikola Uzelac, Milosevic's secret police chief Jovica Stanisic and Dobrica Cosic, Yugoslav president from 1992-93.

There are recordings of his talks with other Bosnian Serb leaders, such as Momcilo Krajisnik and Biljana Plavsic, and with Milan Babic, leader of the Serbs in Croatia. There is one recording of a talk between Plavsic and the headquarters of Zeljko Raznatovic, better known as Arkan, in Zvornik, just after the Tigers entered the town on the Bosnian border with Serbia.

There is also a recording of a telephone conversation between Milosevic's wife Mira Markovic and General Adzic. This took place after Milosevic - in another recorded telephone conversation - told Karadzic to "call Mira" and ask for Adzic's telephone number. In the trials held before the tribunal so far, intercepts were accepted as evidence if the prosecution demonstrated their authenticity beyond any doubt.

Also among the evidence listed in the pre-trial brief footnotes are memoires and diaries of Serbian and Yugoslav politicians and generals. There are frequent quotes from the books of two men listed in the indictments against Milosevic as accomplices in the "joint criminal enterprise". The first is Borisav Jovic, president of the Yugoslav presidency just before the war in Slovenia and Croatia, who Milosevic used to control the JNA. His book The Last Days of the SFRY is an astonishingly open account of the preparations for the wars in Croatia and Bosnia and the way Milosevic and Jovic manipulated state institutions, especially the JNA.

The second is the book of the then JNA chief of staff, General Veljko Kadijevic, entitled My View of the Break-up, in which the author provided an equally candid account of the transformation of the Yugoslav army into a Serbian military force.

The pre-trial brief also contains numerous self-congratulatory (and self-incriminating) statements by other participants in the "joint criminal enterprise", boasting of their contributions to the "Serbian cause" and showing off about their contacts with Milosevic or JNA commanders.

Among these are Vojislav Seselj, leader of the Radical Party and the Chetnik paramilitaries, Arkan and Milan Martic, president of the Croatian Serb statelet, the Republika Srpska Krajina (currently in The Hague, accused of shelling Zagreb). There is also one statement from General Ratko Mladic in which he expressly states that Bosnian Serb goals can only be achieved through genocide.

A remark made by Milosevic at the start of his court appeal in Belgrade in April 2001 - in which he admitted paying his " brothers on the other side of Drina" – belongs to the same category of self-incriminating statements.

One of the most interesting comments in the pre-trial brief is attributed to Jovica Stanisic - once the all-powerful head of Milosevic's secret police – who is presented in the indictments for Croatia and Bosnia as a participant in the "joint criminal enterprise".

At Police Day celebrations on May 13, 1997, Stanisic turned to Milosevic and said, "Everything we have done so far, we did under your control and with your authorisation." The prosecution interpreted this remark as recognition of the defendant’s authority, though it could just as well be taken as a veiled threat.

Only Stanisic, who fell from grace soon after making the remarks, is able to say precisely what he meant – and we won’t find out unless he appears at The Hague as a witness or a defendant, or both.

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