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The case against Slobodan Milosevic

By Jerome Socolovsky, Associated Press, 7/3/2001 02:14

While Slobodan Milosevic has finally been brought to face justice at The Hague, his conviction is by no means assured despite excruciating efforts by hundreds of investigators to amass evidence on Europe's worst slaughter since the Holocaust.

The proceedings at the U.N. war crimes tribunal could take years, with horrific tales from survivors, wrenching images of skeletons in mass graves with bound wrists and shattered skulls and testimony from major political figures.

Nevertheless, Case No. IT-99-37-I The Prosecutor against Slobodan Milosevic could be difficult to prove.

In the apparent absence of signed orders or a lieutenant willing to testify against his former chief, the Milosevic trial faces the test of the legal responsibility of superiors set by the trials of Reich Marshal Hermann Goering and 21 other Hitler henchmen at Nuremberg.

''We are living in a post-Nuremberg era,'' explained Anthony D'Amato, a Northwestern University Law School professor who has represented a Bosnian Serb defendant in The Hague. ''Milosevic wasn't stupid enough to say: 'Go out and torture those people.'''

The formal trial is months away, but it is already becoming clear that the outcome is likely to hinge on three questions.

Does the prosecution have a continuous paper trail leading up to the former Yugoslav president?

Can defense lawyers prove Milosevic tried to prevent atrocities or punish the perpetrators?

How stringently will judges interpret the standards that make a leader responsible for atrocities committed by subordinates, even when there is no direct proof he ordered them?

THE PROSECUTION:

Since the tribunal's establishment in 1993, investigators have combed the killing fields of Bosnia, pored over documents and interviewed thousands of witnesses. These efforts have led to convictions of 20 defendants, mostly Bosnian Serbs. About 40 suspects are in custody.

Although the indictment against Milosevic focuses on massacres and deportations of ethnic Albanians in Kosovo, prosecutors also plan to charge him with atrocities by Serb forces in Bosnia and Croatia.

That would essentially hold the former leader responsible for all of the wars that followed the 1991 breakup of Yugoslavia, in which hundreds of thousands of people were killed in massacres and attacks on civilian areas.

But while Milosevic's guilt may appear obvious because of his prominent political position, chief tribunal prosecutor Carla Del Ponte conceded last week that the task was complex: ''This case will be tried in court, not in the media.''

''It really depends how many people are going to turn against him and testify against him,'' said Avril McDonald of the Asser Institute of international law in The Hague.

McDonald suggested that the current government in Belgrade might be able to help by handing over witnesses still in Yugoslavia or scouring its own archives for evidence.

THE DEFENSE:

On Monday, Milosevic conferred for three hours with two Yugoslav lawyers at the Dutch prison where he is being held. Lawyers Zdenko Tomanovic and Dragan Krgovic then told reporters that Milosevic refuses to accept the validity of the court. However, D'Amato and other legal experts already have said this is not a very effective defense since, not surprisingly, the tribunal already upheld its own legality.

A much more effective tactic would be if Milosevic can produce signed documents showing that he warned soldiers against committing war crimes and took action against perpetrators.

According to D'Amato, prosecutors have ''orders, letters, oral and written commands, memos and directives that expressly forbade the commission of war crimes'' signed by Radovan Karadzic and Ratko Mladic, the tribunal's top suspects still at large.

''I would be flabbergasted if Milosevic didn't do it, too,'' he said.

Another expected line of defense against the charge of deporting Bosnian Croats and Muslims would be to demand testimony from leaders such as former Secretary of State Madeleine Albright, diplomatic envoy Richard Holbrooke and peace mediators Cyrus Vance and Lord Owen.

In endorsing a partition solution of the Bosnian conflict, they supposedly would have been complicit in the ''deportations,'' according to that defense tactic.

THE JUDGES:

But even if Milosevic does present orders exonerating him, judges will have to decide whether they were issued sincerely or in a premeditated effort to pre-empt judicial action.

The Nuremberg judgments after World War II were the first real verdicts on command responsibility. But the case of Gen. Tomoyuki Yamashita, Japan's wartime military governor in the Philippines, has perhaps become the most important legal precedent because it allows judges to infer guilt when direct proof is absent.

Yamashita was found guilty because he should have known that Japanese soldiers were raping and pillaging a stone's throw away from his command post.

''The crimes were so extensive and widespread,'' judges ruled, ''that they must either have been willfully permitted by the accused, or secretly ordered by the accused.''

-- Anonymous, July 03, 2001