ANALYSIS: Milosevic's Other Indictments

When former chief prosecutor Louise Arbour announced, on May 27, 1999, indictments against the then Yugoslav president and four of his associates for crimes against humanity in Kosovo, she emphasised that this was, by no means, "her last word on the responsibility of Slobodan Milosevic".

The expectation was that she would crown her three-year-long tenure in The Hague by either upgrading the Kosovo indictment to include the gravest crime, genocide, or issuing fresh indictments against Milosevic for war crimes in Croatia and/or Bosnia and Herzegovina. Yet upon her departure in November 1999, neither of these expectations had been fulfilled

Her successor, Carla Del Ponte, announced on several occasions that the issuing of new indictments against Milosevic, at the time still in power, was "only a question of months". Yet Milosevic was overthrown six months ago, and still indictments against him for Croatia and Bosnia have not been forthcoming. Still the prosecutor is promising them in "some weeks or months".

At a time when the pace of activities in The Hague has been increasing, this unfulfilled promise has been an anomaly - an awkward and, to many, an inexplicable gap, leaving the tribunal open to criticism. How could the Kosovo indictment have been issued in the midst of the Kosovo conflict, when indictments for the Bosnian and Croatian conflicts of the early to mid-nineties have yet to be released?

"I am putting the same questions to my investigative teams," Del Ponte admitted, when pressed on the question by Tribunal Update. One explanation, she suggests, is that investigators did not rush to complete these investigations "since they could not have predicted that Milosevic would not only lose power but also be arrested". So, she says, they opted for "other priorities".

There was also a change in the prosecutor's strategy. Instead of releasing indictments and then continuing investigations, as in the first years of the tribunal, the prosecutor presents them to the confirming judge only when a case is "trial ready" - i.e., after all of the investigations are completed and all of the evidence is assembled so that a case can go to trial as soon as an accused is arrested.

From a prosecutor whose determination to bring such indictments could hardly be doubted, this is not just an excuse. The real difficulty, for prosecutor and investigator alike, is the case - arguably the most critical and almost certainly the most complicated the tribunal will ever bring.

During the years of war in Croatia and Bosnia, Milosevic was the president of Serbia. As the prosecutor explains, this means that the legal chain of command and his de jure responsibility are not as obvious as in Kosovo. In that case, he was in power during a conflict within his own country - president of the state, supreme commander of the army, head of the republican and federal police at a time of threatened or actual war.

In the earlier cases, Serbia was not formally involved in war. If the armed forces of the former socialist federation or those of the current federation (the Yugoslav People's Army or the Army of Yugoslavia, respectively) were involved in atrocities committed in Croatia or Bosnia, this would normally only indicate the leaders of Yugoslavia, not of Serbia, bore de jure responsibility. As such, a case over the former president's authority and responsibility must be constructed on a combination of the evidence of his de jure and de facto authority.

As Arbour, the former prosecutor, pointed out at the time of the Kosovo indictment, the difficulties in any investigation into command and control are substantial [See Tribunal Update No. 127, May 24-29, 1999]. "The evidence is neither self-evident nor easily available," she said. "A high level of sophistication in investigation of such responsibility is needed in order to gain an overview of the military, paramilitary and political structures, and to understand the functioning of a chain of command."

Indeed, lessons from previous cases, in both ex-Yugoslavia and Rwanda, have demonstrated to the prosecutor's office the imperative of understanding how command functioned in practice.

"What on paper or by law may appear to be a command structure, may not be so in reality," Arbour noted. "The investigation must cover all those issues in accordance with the standard of proof applicable in criminal cases in order to determine what was the command structure both in theory and in reality. This necessitates an inordinate amount of time, energy and level of sophistication."

This may strike outside observers of the tribunal as odd, as it is believed that "everyone knows" the unlimited nature of Milosevic's de jure and de facto power over the past decade. "Everyone knows", as well, about the parallel or informal chains of command by which Milosevic manipulated the army, police and paramilitary in Serbia and local (Croatian and Bosnian) Serb communities.

More significantly, according to its own charge sheet in the Kosovo case, the Office of the Prosecutor seems to know this, too. Parts of the Kosovo indictment indicate on which grounds Milosevic may be indicted for crimes committed in Croatia and in Bosnia and Herzegovina.

"Although President of Serbia during the wars in Croatia and Bosnia and Herzegovina, Slobodan Milosevic was nonetheless the dominant Serbian political figure exercising de facto control of the federal government as well as the republican government, and was the person with whom the international community negotiated a variety of peace plans and agreements related to these wars," the Kosovo indictment reads.

Between 1986 and the early 1990s, it continues, he "progressively acquired de facto control over federal, republican, provincial and other institutions . . . and over numerous aspects of the FRY's [Federal Republic of Yugosalvia's] political and economic life, particularly the media." His de facto control over Serbian, SFRY (the former Socialist Federative Republic of Yugoslavia), FRY and other state organs has "stemmed, in part, from his leadership of the two principal political parties that have ruled in Serbia since 1986, and in the FRY since 1992."

But as Arbour used to warn, "the transformation of public perception into an indictable case, on the standards that we are satisfied with and for offences that are within our statute, is a considerable transition."

Acknowledging that fresh indictments are "not ready", the current prosecutor evidently does not feel that that transition has been satisfactorily completed yet. This would suggest that investigators are still not convinced that they have sufficient evidence (for example, from intelligence sources) or reliable witnesses (such as former associates of the ex-president) with which they could prove beyond a reasonable doubt Milosevic's de facto powers over federal institutions and local Serbs, and their "states" and "armies" in Croatia and Bosnia.

Del Ponte may have received a boost at the beginning of April, of all people from Milosevic himself. His appeal against his detention - in which he directly participated in drafting - asserts that he used secret funds not to accumulate personal wealth but to arm and equip Serbs in Croatia and Bosnia. At the time, a source in the prosecutor's office told IWPR that the admission, together with corroborating evidence already in the possession of the prosecutor's office, "could help close some remaining holes" in the preparation of the Croatian and Bosnian indictments. Of course, a source noted, Milosevic can say that he lied in his Belgrade appeal to "save his skin" - a right allowed the accused under Yugoslav law.

In any event, Del Ponte insists the indictments will be completed before Milosevic arrives in the Hague, "so that he can be tried for all crimes committed, not only in Kosovo, but also in Croatia and Bosnia."

Asked if she was still confident that Milosevic will be in The Hague before the end of this year, she replied, "Absolutely".