His Day In Court

When case IT-02-54 is finally heard at the international war crimes tribunal in the Hague this week, it will mark a moment many despaired would ever come. The Serb strongman and former President of Yugoslavia who pre-sided over a decade of mass murder and mayhem across the Balkans seemed untouchable for so long, and then became almost forgotten as the world’s attention fixed on a new global villain. Yet Milosevic will now have to sit each day in an austere courtroom, flanked by two U.N. guards, to answer to charges of crimes against humanity — even if he does remain defiant as ever.

Normal trials follow a prescribed, orderly path. But no one knows what to expect in this one — a test case for international justice, the first trial of a head of state. The prosecution must convict Milosevic not just in the eyes of three sitting judges but also in the court of world opinion. Yet never has the Hague tried a defendant so uncooperative. Milosevic seems determined to make the proceedings a spectacle of courtroom subversion, refusing to recognize the tribunal, refusing to enter a plea, refusing to select defense lawyers, refusing even to wear headphones to hear the proceedings in Serbian.

In every pre-trial appearance, Milosevic has responded with political diatribes. He has labeled the charges against him “absurd” and “monstrous,” the prosecutor a NATO mouthpiece, the court a “retarded seven-year-old.” He has called himself a peacemaker who’s on trial to cover up NATO aggression against a sovereign country. The rants have led presiding Judge Richard May to cut off Milosevic’s microphone. Milosevic has dropped hints that he might stage a grand scene by calling a parade of Western leaders to testify, starting with former U.S. President Bill Clinton and British Prime Minister Tony Blair. It will be up to the three judges, who also comprise the jury — Britain’s brisk, outspoken May, scholarly Patrick Robinson of Jamaica and South Korea’s quiet O-Gon Kwon — to make sure the whole thing doesn’t descend into farce.

Most Serbs who watch will be in for a shock. Whether they accept the tribunal or dismiss it, says Sonja Biserko, president of the Helsinki Committee for Human Rights in Belgrade, “We are going to be forced to confront things that haven’t been discussed until now. The horror of the crimes will become self-evident.” And the government of President Vojislav Kostunica may face dissent from within as the misdeeds of insiders — many of them still in office — are publicly aired for the first time and new witnesses are called upon to testify.

THE CHARGES
It’s worth remembering that for all his destructive desires, Osama bin Laden hasn’t wreaked anything like the mayhem Milosevic is accused of. The ex-President is charged with responsibility for the deaths of 300,000 non-Serbs and the expulsion of millions from their homelands, starting in Sept. 21, 1991, when Serb forces shot 11 Croats in the town of Dalj, and ending in May 25, 1999, when eight ethnic Albanians were killed during the forced evacuation of the village of Dubrava/Lisnaje.

In the legal terms of the three indictments, that adds up to 66 counts of genocide, crimes against humanity, violations of the rules of war and grave breaches of the Geneva Convention during the decade of wars in Croatia, Bosnia and Kosovo. The charges are a litany of persecution, extermination, murder, torture, inhumane acts, wanton destruction, deportation and forcible transfer. They accuse Milosevic, as the “dominant political figure” in Serbia, of orchestrating a “joint criminal enterprise” to cleanse non-Serbs from vast swaths of territory to leave an ethnically pure nation.

There is only one formal count of genocide, in Bosnia: it’s the gravest offense on the war crimes books but the hardest to prove. Prosecutors must show Milosevic knowingly intended to wipe out, in whole or in part, an ethnic or religious group — Bosnia’s Croats and Muslims. “Unless you’ve got an accused saying, ‘Yes, I had the intent, and I had the ability to do it,'” says deputy prosecutor Graham Blewitt, “you can only submit evidence that will enable the judges to infer that’s what was in the accused’s mind.” Most of the charges fit under the less demanding “crimes against humanity” statutes. The maximum sentence is the same for all the charges: life in prison.

Originally, the jurists in Trial Chamber III wanted to try Milosevic first on the Kosovo campaign and later for Bosnia and Croatia. But an appeals court two weeks ago accepted Chief Prosecutor Carla Del Ponte’s argument that all three were part of “one strategy, one scheme” and that witnesses, once revealed, might be intimidated not to appear again. So there will be one trial, expected to conclude by late 2003.

THE PROSECUTORS’ STRATEGY

The tribunal’s acquittal rate so far is low. Years of investigation have turned up hundreds of witnesses and loads of exhibits that go far beyond circumstantial constructs. Investigators were able to fish for more after Milosevic’s regime fell in October 2000 and the new government let them inside Yugoslavia for the first time. Though the investigators complain they got more obstruction than cooperation, especially from the military, no one could cover up one incriminating new find: the bodies of Kosovo Albanian victims listed in one indictment were unearthed near Belgrade last May.

The prosecuting team also has Del Ponte, who is one tough lawyer. The Cosa Nostra mobsters that Del Ponte, as Switzerland’s attorney general, pursued on money-laundering charges tried to blow her up; the banker gnomes in Zurich whose secrecy she penetrated trembled before her. No matter what stunts Milosevic pulls, says Richard Dicker, director of the International Justice Program at Human Rights Watch, “she is not going to be sidetracked or tripped up.”

The trick is to prove the leader of a nation is the intellectual author of crimes even if he did not literally have blood on his hands. The testimony from nearly 50 victims is likely to be compelling. But the most damning words may well come from the “insiders”: some 20 high-level political and security bosses with first-hand knowledge of what Milosevic said and did. What Del Ponte needs to prove is Milosevic’s “superior authority”: that he exercised control over the perpetrators of atrocities, knew or had reason to know crimes were being committed and did nothing to stop them or punish anyone. Prosecutors won’t name these key witnesses yet, to protect them and encourage their appearance.

But former Yugoslav President Zoran Lilic, a lesser player who nevertheless attended key meetings, fretfully tells Time he will testify if local authorities provide him with sufficient legal and security guarantees. Principal trial attorney Geoffrey Nice was in Belgrade last month interviewing key figures whose testimony would be invaluable. They included Rade Markovic, once head of state security, now in a Belgrade prison facing murder charges: the threat of a long prison sentence might persuade him to rat on his old boss. Nice also interviewed Mihalj Kertes, former chief of the powerful customs service, and the notorious Franko “Frenki” Simatovic, the commander of the feared Red Berets, a police unit accused of spearheading ethnic cleansing from Croatia to Kosovo. Three men indicted with Milosevic — ex-Defense Minister Dragoljub Ojdanic, Serbia’s former Interior Minister Vlajko Stojiljkovic and top adviser Nikola Sainovic — were also asked last week to give themselves up to the Hague. They too would have stories to tell.

THE DEFENSE STRATEGY

Who knows? Since the day last June when Milosevic was shut behind the thick red doors of a 3-m-by-5-m cell within a Dutch prison, he has acted as if the trial was not happening. Every morning, he reportedly dons a sharp suit and tie to greet his fellow inmates. “Good morning, comrades,” says Milosevic. “Good morning, Mr. President,” comes the reply. Assorted lawyers pay him visits, but he has hired none to defend him. He confers most with his adoring, equally defiant wife Mirjana, who visits occasionally and phones every day.

Even if he has to be carried by guards to his chair behind the empty table reserved for defense lawyers, Milosevic will be at the trial. He will get equal time to make an opening statement. If past appearances offer any clue, he’ll claim he was just defending his country, just fighting terrorists like the U.S. is now, just suffering from NATO aggression. He’ll force the court to broadcast, as it has before, Serbian translation of the testimony into his face from a loudspeaker. He’ll look bored, yawn, stare impatiently at his watch when prosecutors speak.

The tribunal has named “amicus” attorneys — friends of the court — for Milosevic, to challenge evidence and offer exculpatory facts, even if he won’t. If he tries to put NATO on trial as an unlawful aggressor by calling world leaders as witnesses, they would likely refuse to appear. Only the judges could legally summon them.

If the Serb leader presents no legal defense, prosecutors believe they can make a swift case for conviction that is able to withstand appeal. But that would present its own problem. “It will be difficult to explain the lack of adversarial picture that people expect in court,” says Dicker. “For that reason, it poses a real challenge to the judges: that the trial be fair to Mr. Milosevic and be seen as being fair.” For the credibility of the tribunal, that is key. More than anything, the trial and its verdict need to convince the world’s victims and villains alike that, in the end, justice can be done.