February 11, 2002

Milosevic Defense Will Put NATO on Trial

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The most significant international war crimes trial since Hitler’s henchmen were tried at Nuremberg is scheduled to begin on February 12. Former Yugoslav President Slobodan Milosevic will appear in the dock at the International Criminal Tribunal for the Former Yugoslavia at The Hague to answer charges of war crimes, crimes against humanity and genocide.

But Milosevic, often referred to in Western circles as the “Butcher of the Balkans,” maintains it is really the leaders of NATO who should be tried for their crimes against the people of Yugoslavia. In 1999, thousands of Yugoslavs were killed or wounded by NATO’s bombs, allegedly to stop the ethnic cleansing of the Albanians in Kosovo.

As The New York Times said on February 9: “When Mr. Milosevic sneers at the tribunal here as ‘victor’s justice,’ he is not entirely wrong.” Former President William Clinton, former Secretary of State Madeleine Albright and U.S. military leaders orchestrated the use of laser-guided and cluster bombs and depleted uranium that devastated the people and the land of Yugoslavia. They will never face charges at The Hague.

Milosevic contends he acted in defense of the Serbs against Muslim extremists. He claims he was fighting the same type of terrorism the United States is now battling in Afghanistan and elsewhere. At that time, the United States gave active support to the Kosovo Liberation Army, a Muslim terrorist group financed by the Third World Relief Agency, through which Osama bin Laden and others funneled $350 million. Milosevic insists that his pleas to Clinton to get bin Laden out of Kosovo were ignored; instead, Clinton allied with the Albanian Muslims against the Serbs.

A centerpiece of Milosevic’s defense is that he maintained friendly relations with U.S. and British leaders after the wars in Bosnia and Croatia. He was even called a peacemaker when the Dayton Peace Accords were signed in 1995, ending the war in Bosnia. He reportedly plans to call Western leaders such as Clinton, British Prime Minister Tony Blair, and former NATO Secretary General Javier Solana to testify. It is unlikely they will appear, however, since the tribunal has no subpoena power.

Milosevic has also challenged the legitimacy of the tribunal itself. Because he refuses to recognize it as an independent and impartial court, he has refused to appoint counsel to represent him. Against his will, the judges have appointed three “amici curiae” or friends of the court to help Milosevic with his defense. But these lawyers have filed motions with no supporting documentation, and they sat mute when Milosevic’s microphone was cut off in mid-speech as he tried to address the court. Milosevic has been denied the right to confidential consultation with his unofficial counsel.

The charges against Milosevic stem from incidents in Bosnia, Croatia and Kosovo. They were initially filed in three separate indictments, but Prosecutor Carla Del Ponte successfully convinced the Appeals Chamber to consolidate all three for trial. In December, the Trial Chamber had joined the Bosnia and Croatia indictments, which deal with events that occurred from 1991-1995. But the Trial Chamber had refused to consolidate the Kosovo indictment with the other two.

The events alleged in the Kosovo indictment occurred in 1999, more than three years after the Bosnia and Croatia incidents. Under the tribunal’s statute, two or more crimes may be joined together in one indictment if the underlying events formed the same transaction, which was part of a common scheme, strategy or plan.

In a lengthy opinion, the Trial Chamber rejected the prosecutor’s argument that Milosevic participated in a joint criminal enterprise, a plan to create a Greater Serbia. The Trial Chamber considered the nexus “too nebulous” to constitute a common scheme, strategy or plan. Finally, the Trial Chamber was concerned about prejudice to the fair trial rights of the accused if the Kosovo indictment was joined with the others.

Scheduled to begin the trial on the Kosovo indictment in February, the prosecutor became very concerned about the lack of witnesses to testify about Milosevic’s alleged involvement in the Kosovo atrocities. As a result, she appealed the Trial Chamber’s joinder decision to the Appeals Chamber. Without giving reasons, the Appeals Chamber saved the prosecution’s case from imminent collapse by ordering the Kosovo indictment consolidated with the others in one trial. The Appeals Chamber stated that the acts alleged in all three indictments formed the same transaction.

Ironically, some contend that Milosevic himself effectively argued for joinder when he told the tribunal that the NATO countries formed a joint criminal enterprise with the Albanian Muslim terrorists and the narco-mafia, against the Serbs and other non-Muslim Albanians.

In spite of overwhelming public opinion against Milosevic in the West, the prosecutor faces some significant proof problems in this trial. Under the doctrine of “command responsibility,” she must prove Milosevic knew or had reason to know his subordinates were about to commit the criminal acts, and he failed to prevent them.

This case could set an important precedent if it establishes that a commander is responsible for atrocities that occur far away. Christopher Black, the Canadian lawyer who heads the International Committee to Defend Slobodan Milosevic, told me: “It would be easier to pin command responsibility on President Nixon for the My Lai massacre or President Bush for the mass murder of prisoners by US forces at Mazar e-Sharif.”

Del Ponte hopes to call Milosevic’s close associates to testify against him, but many who are facing criminal indictments will likely refuse to incriminate themselves. The prosecutor may offer them immunity in exchange for their testimony, but it is uncertain whether they would ever agree to testify even in the face of contempt charges. Reportedly, much of the evidence against Milosevic comes from Western intelligence sources, who may be unwilling to compromise their security by revealing the evidence in court.

If convicted, Milosevic faces life in prison, as the tribunal’s statute does not allow for the death penalty. He could serve his sentence in Norway, Sweden, Finland, France, Spain, Italy or Austria, all of which have agreements with the Hague tribunal to incarcerate convicted prisoners.

There is speculation the prosecutor will ask for a postponement on Feb. 12 to secure witnesses for the Kosovo portion, which will comprise the first part of the trial. Whenever the trial ultimately begins, it will likely span two or three years. The tribunal – and the court of public opinion – will hear allegations not just about Milosevic’s atrocities, but those of NATO as well.