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Yugoslavia: Prosecutors Outline Strategy As Long Milosevic Trial Gets Under Way

Analysts say the prosecution's opening statement this week in the Slobodan Milosevic war crimes trial was logical and well-presented. But they say the prosecution's task of linking the former Yugoslav president directly to war crimes, especially genocide, in the Balkans during the 1990s will not be easy.

Prague, 15 February 2002 (RFE/RL) -- Experts looking at the prosecution's opening statement this week in the war crimes trial of Slobodan Milosevic praise the presentation but say prosecutors will face a difficult task in winning a conviction, especially on the most serious charges.

The trial of the former Serbian and later Yugoslav president for crimes against humanity and genocide opened this week at the UN's International Criminal Tribunal for the former Yugoslavia at the International Court of Justice in The Hague. The trial will examine 66 counts of alleged atrocities by Milosevic committed in Croatia, Bosnia, and Kosovo during the 1990s.

The prosecution spent the first two days of the proceedings delivering a long opening statement, involving presentations from three separate prosecutors. The presentation was then followed by two days of defense statements by Milosevic himself.

Observers say the prosecution's presentation was unique for its length and for the fact that actual evidence -- including a recording of Milosevic speaking with former Bosnian Serb leader Radovan Karadjic -- was introduced. Typically, opening statements are much shorter and simply lay out the course of argument the prosecution intends to follow.

Mary Greer, a tribunal watcher at the nongovernmental Coalition for International Justice in The Hague, praised the presentation.

"I think [prosecutors] are following a very logical plan. It certainly mirrors the arguments [the prosecution] has been making all along in terms of the justification for [treating the separate indictments for Croatia, Bosnia, and Kosovo in one trial]. [The prosecutors] are logically and methodically laying out not only the evidence against Mr. Milosevic but also the historical and political perspective and progression of how he was able to conduct the various offenses he is charged with within that background."

She says the seriousness of the trial -- a former head of state being tried for war crimes -- called for a long opening presentation. She says prosecutors want to prove to the tribunal they are treating the proceedings with gravity.

"It's obvious the prosecution has committed the resources -- in terms of money, and 'people power' and legal expertise -- to put on the best case they can put on. And to try to support the allegations they raised in all three indictments and ensure that when the court finally gets the case, that they considered as much evidence as is humanly possible, and that [this evidence] then rises to the level that this is a head of state that we are trying."

Legal experts close to the tribunal say that to win a conviction for the most serious crime for which Milosevic is charged -- that he was complicit in genocide during the Bosnian war -- the prosecution will have to demonstrate three things.

The first is that the crimes were, by their nature, extraordinary and horrific -- in other words, that they rose above standard acts of lawlessness typical in wartime.

In her opening address to the tribunal, chief prosecutor Carla Del Ponte chose evocative terms like "medieval savagery" and "calculated cruelty" to describe the crimes she says were committed in the former Yugoslavia.

"We should just pause to recall the daily scenes of grief and suffering that came to define armed conflict in the former Yugoslavia. The events themselves were notorious, and the new term 'ethnic cleansing' came into common use in our language. Some of the incidents revealed an almost medieval savagery and a calculated cruelty that went far beyond the bounds of legitimate warfare."

She added, "These crimes touch every one of us, wherever we live, because they offend against our deepest principal of human rights and human dignity."

Prosecutors must also show that Milosevic, as head of state, was responsible for masterminding or directing criminal acts -- such as mass murder -- that he himself did not actually carry out. In other words, they must show that Milosevic held what is referred to as "command responsibility" over his subordinates.

Article 7, Section 3, of the tribunal's statutes deals with the issue of command responsibility. It stipulates that a superior can be found guilty for the acts of subordinates if the superior "knew or had reason to know" about the acts and "failed to take necessary and reasonable measures to prevent the acts or punish the perpetrators."

Finally, the tribunal must show that Milosevic's motives were uniquely evil or part of a larger plan -- in other words, that they exceeded in their depravity what are regarded as more common motivations in warfare.

In their opening statement, prosecutors appeared to go out of their way to portray Milosevic's motives as far beyond nationalism or ideology. Del Ponte spoke of Milosevic's quest for power: "Milosevic did nothing but pursue his ambition at the cost of unspeakable suffering inflicted on those who opposed him or represented a threat to his personal quest for power."

Following Del Ponte, Nice told the court that Milosevic was driven by a singular plan to create what Nice called a Greater Serbia, to be achieved through the forced deportation of non-Serbs.

Paul Risley, a former official in the tribunal prosecutor's office, says the use of such language was deliberate and designed to portray Milosevic as what Risley calls a "genocidal maniac."

"For a crime of genocide, you can do it objectively to a point. You can lay out the command-and-control details that Milosevic might have ordered these killings to take place. But there's also a very subjective aspect. You have to reason or determine to the judges why this person would have done this."

He says it may prove difficult for prosecutors to convince the court that Milosevic possessed truly genocidal urges.

"Here is Slobodan Milosevic. He's been a banker in New York for 10 years. He speaks fairly good English. He wears nice suits. He has many friends of the Islamic faith. He has friends that are Slovenian. He has friends everywhere. So it's harder to say he has an irrational hatred of any one person that he might have attempted to commit genocide toward. So you have to ascribe it to some sort of personal megalomaniac desire for power."

In their opening statement, prosecutors indicated they will be using a variety of evidence to prove their case, including eyewitness testimony, video footage, documentary evidence, and tapes of telephone conversations between Milosevic and his subordinates.

It's the last of these -- recordings often made surreptitiously by Western or former Yugoslav intelligence services -- that may pose the biggest problem. Milosevic is expected to argue that any wiretaps made by Western intelligence services should be inadmissible since their objectivity could be called into question.

Risley says such secret recordings will likely constitute the most important pieces of evidence against Milosevic, especially in proving command responsibility.

"Probably the most crucial evidence if you want to establish Milosevic's command and control of the Serbian military forces would be any sort of wiretaps and intercepts of him on a telephone, speaking to commanders in the field, speaking to Radovan Karadjic or [military commander] Ratko Mladic, and others."

The use of wiretaps is restricted in some national courts. But Risley says the tribunal does allow for wiretap evidence and has admitted it as evidence in the past, as long as it has been verified as authentic by experts.

"Within the tribunal, the rules of the tribunal allow for the use of wiretap evidence. And in fact in the Srebrenica case, just last year, it was wiretap evidence that was crucial in convicting the Bosnian Serb general of complicity in the genocide of individuals at Srebrenica."

It will ultimately be up to the three judges hearing the case to decide whether to admit the recordings as evidence.

Greer of the Coalition for International Justice says it's impossible to predict the outcome of the Milosevic trial, which is expected to last for up to two years. But she says, based on the sheer number of criminal counts against him, it's unlikely the 60-year-old Milosevic will ever again live life as a free man.

"The unique thing at the tribunal is that there is no minimum sentencing guidelines. Milosevic is charged with 66 various counts of offenses within the course of the three indictments. Even if he is just convicted of one -- even if it is not genocide -- he is likely to get some time in prison. And he is likely to spend the rest of his natural life in prison."

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    Mark Baker

    Mark Baker is a freelance journalist and travel writer based in Prague. He has written guidebooks and articles for Lonely Planet, Frommer’s, and Fodor’s, and his articles have also appeared in National Geographic Traveler and The Wall Street Journal, among other publications.