ANALYSIS: Milosevic to put NATO on Trial

Slobodan Milosevic scored a point over the chief prosecutor Carla Del Ponte last week, when the trial chamber appeared to accept his criticism of the proposal to merge his three indictments over Kosovo, Croatia and Bosnia into a single trial.

Milosevic was "delighted", his Belgrade lawyers said, when the trial chamber ruled on December 11 that the Kosovo indictment will be tried separately, starting on February 12 next year. The Croatia and Bosnia indictments will be joined and tried by same court as soon as the Kosovo trial is over.

"If I were in your place I would, personally... reject such ideas," Milosevic had told Judge Richard May, when asked what he made of the merger proposal.

Milosevic did not miss the chance to stress that his advice did not mean he had modified his view that the tribunal is illegal. Explaining why he "personally" would reject the idea, the former Yugoslav president described the prosecutor's request for a single trial as "a consequence of September 11".

He said the prosecutor's real motive was to use a joint trial to "push the accusations over Kosovo into the background, since those accusations open up the question of the [former US president Bill] Clinton administration's cooperation with terrorists in Kosovo, including [Osama] Bin Laden".

Most crimes listed in the Kosovo indictment occurred during the period of NATO intervention against Yugoslavia from March 24 to June 3,1999. According to Milosevic, America supplied close air support to the Kosovo Liberation Army and other Albanian "terrorists" and their foreign Islamic allies, including Bin Laden.

Milosevic presented his version of events in Kosovo at a status conference on October 29-30, when he declared his support for President Bush's anti-terrorist coalition, accusing the Clinton administration of having fostered terrorists (See Tribunal Update No. 242).

Milosevic's strategy is to convert his trial for the killing of several thousand Kosovo Albanians and the deportation of over 800,000 of them into a trial of NATO, and especially of the Clinton administration.

He would follow the same strategy in a joint trial on all three indictments but a separate trial for Kosovo will give him more time and space to present his case, "Milosevic Vs Clinton & Others".

After the trial chamber accepted his "personal advice", Milosevic immediately announced through his Belgrade lawyers that he will request the appearance of Clinton, former US Secretary of State Madeleine Albright and other Western politicians, generals and peace mediators as witnesses.

The challenge of putting NATO on trial may even induce Milosevic to change his attitude towards the tribunal, so that he can make the best use of the opportunity. This does not mean he will formally recognise it. It means that while continuing to deny its legitimacy, he can assemble a team of legal advisers and counsels who will act as his "personal prosecutors" in the "Milosevic Vs Clinton & Others" case.

Such a team is already in the making and was recently joined by the well-known French lawyer Jacques Verges, former counsel for the terrorist "Carlos" and the former Gestapo chief of Lyon, Klaus Barbie (which does not exactly fit the anti-terrorist image that Milosevic is trying to project). Last week, Verges confirmed Milosevic's "friends" had asked him to join the team and that he had begun to "prepare a dossier".

Verges shares Milosevic's conviction that the UN Security Council had no legal basis to create an ad-hoc tribunal, and believes it is worth disputing its legitimacy, even if previous attempts to do so have failed.

Milosevic, who views himself as chief prosecutor in the "Clinton & Others" trial, will decide when and whether Verges, Ramsey Clark, Christopher Black and others appear in the courtroom.

At some point between the pre-trial conference scheduled for January 9, 2002 and the start of the Kosovo trial, Milosevic will probably request that some or all of them are appointed as his "legal advisers", so he can have privileged consultations with them.

The result may be a request for a postponement of the hearing, so that Milosevic and his "prosecution team" can gain extra time to prepare for the trial.

Milosevic may alternatively request his "legal advisers" take an active role in the courtroom after he has assessed that the right time has come to start an offensive.

The trial chamber may have been over-optimistic when it suggested the Kosovo trial might be completed relatively quickly, opening the way for the joint trial on Croatia and Bosnia.

The prosecutor based the request for a single trial on the claim that the crimes attributed to the accused in Kosovo, Bosnia and Croatia formed a single "transaction" or "common scheme, strategy or plan".

The prosecution claims this revolved round Milosevic's plan to create a "Greater Serbia, encompassing Kosovo and the areas of Croatia and Bosnia with a substantial Serb population... through the forcible removal of non-Serbs from those territories".

Although the prosecution distanced itself from the phrase Greater Serbia at the Motion of Joinder hearing, the judges homed in on the phrase when they rejected the trial merger proposal, assessing it as "too nebulous to point to the existence of a common scheme, strategy or plan".

The judges drew a distinction in time and place between the Kosovo and other indictments, and "a distinction in the way in which the accused is alleged to have acted". While Milosevic acted in Croatia and Bosnia indirectly through "agents" in Yugoslavia's federal organs and army, they said, in Kosovo he had acted "directly" as commander of the Yugoslav army in his capacity as federal president.

Prosecutor Geoffry Nice explained in vain that everything began and finished in Kosovo and that a "permanent quiet ethnic cleansing" had begun there in the early Nineties. He said Milosevic had full police and military control of the province, but that Washington had let him know in late 1992 that any move to repeat the Croatian and Bosnian scenario in Kosovo would trigger US intervention. This was Bush senior's "Christmas warning", which his successor Bill Clinton repeated.

Nice described Kosovo as "a crime waiting to happen" and said the crimes committed there could not be understood without understanding preceding events in Croatia and Bosnia.

The prosecution will probably appeal the trial chamber decision. If the appeal chamber confirms that Milosevic will be tried separately for Kosovo, the real question is when the second hearing will begin. Milosevic will try to do his utmost to present his case against "Clinton & Others" in the Kosovo trial with the support of his "legal advisers" or, as he might say, "private prosecution" lawyers.

When the prosecution starts to prove the role and responsibility of the accused and other participants in the "joint criminal enterprise" in Kosovo in 1999, they will constantly have to return to the role of the same people in Croatia 1991 and Bosnia 1992-1995.

Everything else in Milosevic's fourth appearance in court had the air of déjà vu. As expected, he refused to enter a plea on the indictment for genocide and other crimes in Bosnia, forcing the trial chamber again to enter a not guilty plea on his behalf. The only novelty was Milosevic's bizarre claim that he took "the credit for peace and not war in Bosnia".

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