Volume 11 Numbers 1/2

Winter/Spring 2002

Special Reports

Justice Must Be Done and Be Seen to Be Done: The Milosevic Trial
Vojin Dimitrijevic

The trial of Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia (ICTY) was met with great expectations. For a long time, from the creation of the tribunal up to 2000, the chance of his being apprehended and delivered to The Hague seemed remote indeed. It appeared more probable that the possibility of judging an acting head of state for international crimes was a prospect only idealistic believers in international criminal justice could see, one that would not materialize for many reasons. Among them was the not unimaginable repetition of 1995, when the then "butcher of the Balkans" became, overnight, an "indispensable factor of peace" once he had signed, on behalf of the Serbs in Serbia and Montenegro as well as those in Republika Srpska, the Dayton-Paris Peace Accords for Bosnia and Herzegovina. It was quite realistic to expect that Milosevic, more valuable for a settlement in the Balkans in Belgrade than in The Hague, would be spared in order to sign and guarantee a new arrangement and to be rewarded for that. It seems he was indicted only when he proved too irrational to be treated as a valuable partner by even the most morally obtuse diplomats.

This became quite obvious in the prelude to the NATO intervention of March 24, 1999. He was simply not responsive to threats. He was not impressed by warnings from Western leaders after the Rambouillet conference, where he had sent a group of his favorite multicultural clowns (a "Turk," an "Albanian," a "Roma," even an "Egyptian"), led by the totally powerless president of Serbia, Milan Milutinovic, who has himself now joined the ranks of the indicted.¹ Javier Solana then issued the order to NATO forces to attack Yugoslavia after 24 hours, apparently hoping that, since the order was ostensibly irrevocable, Milosevic would reconsider. He did not, and the bombing started. NATO thought that by now the Yugoslav president would have seen that the alliance meant business. Nothing happened: dictators do not care about the destruction of their cities. It was believed that he would succumb in four days, then in ten, then in two weeks. Milosevic did not budge. It was at this point that NATO spokespersons spoke for the first time and in desperation about the political opposition in Serbia.² Then the indictment was approved.

Even after the accusations were made public, there were other reasons to suspect that Milosevic would never appear before the tribunal. Nor was it clear how he could be overthrown, and it seemed still less likely that he would allow himself to be captured alive, taking into account, inter alia, the suicidal streak in his family.

The first days of the Milosevic trial were already an anticlimax. Millions of television viewers in Yugoslavia, who had voted him out of office in September 2000, saw the old self-confident, cocky manipulator who had mesmerized them in the late 1980s and led them to war. He sat in the courtroom as if he were presiding over a plenary session of the Central Committee of the League of Communists of Serbia, where his meteoric career had started. His archenemies in Serbia, those few who had opposed him since 1987 and who believed that an international trial would be a triumph of justice and a lesson to be remembered by the Serb people, saw that his popularity, which had plummeted in October 2000, was on the rise. He climbed to fourth place in terms of popularity and reliability among all Serbian politicians!³

What happened? What were the reasons for the failure to use the trial for much-anticipated and worthy purposes?

There are several possible answers. One of them, as I implied above, is the original sin of indicting Milosevic too late and at the least appropriate moment. The butcher of the Balkans had been notorious before the 1995 Dayton meeting, where he was accepted as the strongest and most influential personality present and depicted by Richard Holbrooke as the most rational, least nationalist, and even as charming and likable (something like the Uncle Joe image of Stalin in the US during World War Two). We should remember, however, that the massacre in Srebrenica had happened shortly before the beginning of the conference. In spite of the psychological-denial mechanisms at work with many Serbs, most of them are fully aware that Bosnian Muslims were not prepared for war; that they were not importing arms, as in Croatia; and that, in Bosnia, there was no so-called terrorist liberation army, similar to the one in Kosovo.

However, rather than taking up the first and worst occurrences, Milosevic's indictment for crimes in Bosnia and Croatia came only after the indictment for Kosovo. The prosecution overcame the trial chamber's refusal to join the three indictments into a single case and then unexpectedly, as in a postmodernist play, started showing the final act first. The trial opened with the events in Kosovo and, moreover, the prosecution quickly concentrated on the misdeeds of the Serb and Yugoslav army and police transpiring simultaneously with NATO's intervention.

This provided Milosevic with excellent opportunities. Naturally, the outset of the trial has to be seen from his perspective and his particular objectives. He is not interested in the trial as a legal procedure. He is sure that he will be punished at the end of the day, not so much because the evidence as a whole will be overwhelming but because, like many others in the Balkans, he believes in conspiracies. As he has repeatedly stated, the tribunal is a political tool of the United States and the New World Order, which are determined to destroy him and-he is always careful to add-the Serb people. So there is no point, from Milosevic's point of view, in talking to the judges; rather, it is better to address audiences that could be won over by his arguments: Serbs in Serbia, Bosnia, Croatia, and Montenegro-and, possibly, the world antiglobalization and anti-US community.

And the prosecution played into Milosevic's hands. Instead of addressing the massive number of Serb television viewers, poisoned by nine years of antitribunal propaganda,⁴ telling them that the trial was about ius in bello, about violations of humanitarian law irrespective of the origin of the conflict and the rightness and wrongness of the aims of the parties to the conflict, the prosecutors started with a recital of history and of the plans for a Greater Serbia. The first witness was a disaster: Mahmut Bakalli, a former Kosovo Albanian communist official who is still remembered as Tito's bon vivant satrap in Kosovo. This confused man, who portrays himself as an intellectual, now pretended to have always been convinced that there was no life for ethnic Albanians in Yugoslavia, thus contradicting the very communist project he had served. He was easy prey for Milosevic, who only had to remind him of his inconsistencies.

A particular Milosevic political forte was demonstrated again at the trial. The basic source of his tactical successes within the communist hierarchy and, later, when dealing with his rivals in the former Yugoslavia, in the conflicts with other post-Yugoslav entities, and in negotiations with numerous foreign dignitaries, is to be found in his unconventional, unexpected, surprising reactions-his rejection of any accepted rules. If he were captain of a soccer team, Milosevic would enter the field with four balls and start an endless debate on why a soccer game should be played with only one ball. After many Serb defendants had behaved before the tribunal like persons accused of committing crimes and after their counsel (carefully and chiefly selected by officials close to Milosevic) had acted in the same manner, the former president of Yugoslavia, their supreme leader, changed tack. He both denied the very existence of ICTY and used it as a public-relations vehicle. He refused to retain counsel and got, in the form of amici curiae, three free, very competent defenders instead. He could then, if he chose to do so, profit by what the amici did, but he could also disavow them. Depending on the situation, he either acted as defendant or as defense counsel. He refused to be served documents unless he was interested in them. In turn, he did not acknowledge written documents, which he had not read, because he did not recognize the tribunal, had no attorney, and so on.

The prosecution's plan-to start by proving that the Greater Serbia scheme involved massive deportations of Kosovo Albanians-resulted in the trial's beginning with statements by Bakalli and other ethnic Albanian witnesses. These were mostly simple people, giving testimony to the effect that Kosovo Albanians had been gradually deprived of their rights even before Milosevic came into power. To the Serbian audience, such matters as Albanian children being compelled to study history from books translated from Serbo-Croat or that dwelled excessively on the history of Serbia did not appear to be major crimes. When it came to criminal deeds, Milosevic presented films (produced by non-Serbs) that showed the casualties caused by NATO bombing, including many Serb, but also Albanian, women and children. The Albanian witnesses behaved as if they had been instructed not to mention NATO at all and to act as if they had never seen a unit of the Kosovo Liberation Army (KLA). It was easy enough for Milosevic to show that most of them had relatives in the KLA. This, unfortunately, also indicated that he had access to police files, which were either at his disposal through the remnants of his men in the present military and civilian secret services of Yugoslavia or that the relevant files had been saved and brought to a secure place in The Hague.

That the NATO bombing was in full swing when the worst alleged atrocities against Albanian civilians occurred; that the KLA was a terrorist organization keen on provoking excessive reactions by Serbian forces; and that most witnesses knew somebody in the KLA, were related to them, and approved of the goal of independent Kosovo-none of these circumstances can justify reprisals and inhumane treatment in the eyes of foreign observers and, for that matter, of the judges. However, this is not how the testimony in The Hague would have been viewed by the majority of Serbian television viewers. For them, Milosevic was defending the territorial integrity of Yugoslavia against foreign (NATO) aggression and Albanian secession and combating KLA terrorism. For the racists among them-not few in number-primitive, tribal, deceitful Albanians did not deserve any better treatment. A curious proof of Albanian cunning for the audience was the fact that Bakalli, who speaks fluent Serbian, testified in Albanian (with occasional switches to Serbian). And again, Milosevic repeated ad nauseam that it was not him but Serbia who stood accused. For the ordinary people in Serbia, that rhetoric sounded familiar and was easy to absorb because it would have been heard with a kind of déjà vu. This was what Milosevic and his nationalist intellectuals had been trumpeting since 1989. And now, in March 2002, not unsurprisingly, 56 percent of the inhabitants of Serbia and 46 percent of the inhabitants of Montenegro think that the trial of Milosevic is "unjust."⁵

I am sure matters look quite different to most people sitting in the courtroom, to foreign legal experts, and to the prosecution. They are interested in the trial and its final outcome. They may even hope that Milosevic's familiarity with the minute details of the life of ordinary Kosovo peasants will eventually be used against him when he starts pretending that he did not know about the operations of General Mladic and Arkan's paramilitaries in Bosnia.⁶ They probably believe that the prosecution has to proceed systematically: to demonstrate the grand design (Greater Serbia), to start with mass deportations, to prove the existence of the intention to annihilate, all of which would be necessary in order to qualify Milosevic's actions as genocide.

Legally minded experts may dismiss public opinion in Serbia as irrelevant to the trial for other reasons: Serb prejudices, the distress of those Serbian voters who turned against Milosevic not because he had started wars but because he had lost them, with dire economic effects, are simply of no consequence. The Nuremberg panel did not care about the majority of Germans who fought with Hitler until the bitter end. Trials, they would say, are tedious, and the interest in Serbia will wane.
This attitude can be countered not only by references to political psychology but also by substantial legal arguments. The purpose of modern penal law and of trials administering criminal justice is not solely to punish but also to prevent. The rationale behind The Hague Tribunal conforms with this idea, and not only out of general, philosophical concerns. One fundamental reason is the legal origin of the tribunal in Chapter VII of the UN Charter, which deals with measures to protect peace. The tribunal's judgment must be, and should be, a potent deterrent to prevent others from committing international crimes. And where are the likely recipients of this message of deterrence to be found? Most of them are to be found in the territory of the former Yugoslavia, and, if the convicted criminal is a Serb or a Montenegrin, in Serbia and Montenegro. Would it not have been worthwhile to adapt the juridical message to them and to try to overcome their phobias, their anxieties, and their grievances, the sediments of decade-long nationalist propaganda?

It is possible to envisage a trial, without compromising the principles of justice, that would have made a better beginning. As suggested, the function of the tribunal, the role of the prosecution, the aim of the trial itself could have been explained to the huge audience in Yugoslavia by the chief prosecutor in her opening statement. Alleged crimes could have been presented in logical and chronological order. By now, the crimes in and around Vukovar, the siege of Sarajevo, the outrages in Prijedor, the Srebrenica massacre, and so on, are known and recognized by the majority in Serbia. They have been proven already in other trials before the tribunal. Most of the witnesses would be quite understandable and convincing, speaking one or another derivation of the Serbo-Croat language, which-no matter how labeled presently-is understood by everyone. Some atrocities took place well before any international involvement. Peace activists and members of nongovernmental organizations from Serbia have already been in Croatia and Bosnia many times, and their visits were returned by their counterparts, with conspicuous media coverage. Many Serbs still live in Zagreb and Sarajevo. None of this is true for Kosovo.

The trial would have inevitably reached its monotonous phase, but it could have had a tremendous and valuable punch at the start. Yes, tedium would have prevailed over the Kosovo bit. The trial also would have lasted for years and resulted in the sentence that seems most probable to most observers. However, its impact on Serbia would have been different. The chance for initiation into the system of international justice, for acceptance of one's deeds and for possible catharsis, for the definitive moral and political end of Milosevic and his ideas-all these chances would not have looked as lost as they look now.

Vojin Dimitrijevic is director of the Belgrade Center for Human Rights and was a professor of international law and international relations at the University of Belgrade until being dismissed in 1998 for opposing the reduction of university autonomy under the new University Act in Serbia.

NOTES

1. Milutinovic (who is still de jure president of Serbia!) is remembered for his famous reply to the journalists during the conference. Asked about its possible outcome he said "Que sera, sera."
2. The first references to the opposition leaders revealed deep disdain; their names were misspelled and factual references were inaccurate.
3. Milosevic's popularity did not, however, rub off on the Socialist Party of Serbia, of which he is still the president. All surveys show that its popular support has remained at 6-7 percent.
4. See Vojin Dimitrijevic, "The War Crimes Tribunal in the Yugoslav Context," East European Constitutional Review 5, no. 4 (1996), pp. 85-89.
5. Survey by the Centre for Political and Public Opinion Research in Belgrade, reported in Blic (Belgrade), March 19, 2002, p. 11.
6. Milosevic already hinted at this tactic when he said he had not known about the Srebrenica outrage and that he had asked Radovan Karadzic about it, who also had appeared to him to be poorly informed.

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