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The Milošević TrialAn Autopsy$

Timothy Waters

Print publication date: 2014

Print ISBN-13: 9780199795840

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199795840.001.0001

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Real Justice, in Time

Real Justice, in Time

The Initial Indictment of Milošević

Chapter:
(p.77) 5 Real Justice, in Time
Source:
The Milošević Trial
Author(s):

Clint Williamson

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199795840.003.0005

Abstract and Keywords

This chapter presents an account of Milošević indictment. Under the theory of superior responsibility, Milošević was charged in his de jure role as president of the FRY and Supreme Commander of the VJ, and as the one in de facto control of Serbia's governmental structures.

Keywords:   indictment, International Criminal Tribunal for the Former Yugoslavia, superior responsibility, crimes against humanity, war crimes, Serbia, Slobodan Milošević

Although he was widely perceived as the one ultimately responsible for the violence that had engulfed the former Yugoslavia, Milošević was never charged with any crime while the wars in Croatia and Bosnia were going on. This was due to a variety of factors: the official positions he held during those wars, the difficulties associated with securing direct incriminating evidence against him, and to some extent the ICTY’s own investigative and prosecutorial strategy. The factual circumstances associated with the Kosovo conflict and Milošević’s changed de jure role, however, made an indictment possible. In a four-month period following the Račak massacre, as violence mounted in Kosovo, the ICTY intensified its investigative efforts and refocused its resources to produce an indictment of Milošević. With Chief Prosecutor Arbour’s personal engagement and backing, a team of prosecutors, analysts, and investigators produced a comprehensive indictment against Milošević and other senior Serbian leaders in May 1999, which paved the way for the later Bosnia and Croatia indictments.

I. The Final Spark

Early in the morning on Friday, 15 January 1999, Serbian security forces went into the village of Račak (Reçak), in Kosovo. By the time they left in the middle of the afternoon, 45 ethnic Albanian villagers had been killed. Among the dead was a woman, a 70-year-old man, and a 13-year-old boy. Their bodies were spread throughout Račak and along a dirt track leading away from the village, where 25 of the victims were executed. Altogether, it (p.78) presented a horrific scene when international monitors from the Organization for Security and Cooperation in Europe arrived early the next morning. Infuriated by what he had seen, the Head of the OSCE’s Kosovo Verification Mission (KVM), Ambassador William Walker, went on television and described what had happened as “an unspeakable atrocity” and as a “crime very much against humanity.”1

That same Friday, I had flown on short notice from The Netherlands to Malta to interview a former Služba državne bezbednosti (State Security Service or SDB) operative from Serbia who had walked into a Western embassy and requested political asylum. Diplomats at the embassy had determined that he had information that might be of use to the ICTY, and I had been dispatched to Valletta to debrief him. I had been in a secure room meeting with the witness Friday and through the entire day on Saturday, so I had not seen any of the news reports about Račak. After finishing for the day, I had gone out for a walk along Valletta’s city walls, accompanied by an investigator from the ICTY who had traveled with me to Malta. As we walked, my cell phone rang: It was ICTY Prosecutor Louise Arbour calling to say that there had been an incident in Račak the previous day. She told me that she intended to go personally to Kosovo to initiate an investigation of the killings and she asked me to accompany her.

I flew back to The Hague, repacked, and met Arbour early on Monday morning, 18 January, at Amsterdam’s Schiphol Airport. We flew to Skopje, where we were met by a senior NATO commander who briefed us on the security situation. He told us that they considered it very unlikely that the Serbs would allow us into Kosovo, saying instead that we were going to be turned away at the border crossing. NATO troops would provide us an escort to the border, but that there was nothing further they could do if Serbia denied us entry.

We then drove in a convoy to the border where we passed through the Macedonian checkpoint easily and then arrived at the Serbian checkpoint. There were dozens of journalists assembled at the border post—this was not a secret mission, but a very public one—and Arbour and I had to wade through them to get to the customs officer, who looked very uneasy, sweating profusely under the lights of the news cameras. Arbour stated that she was there to cross into Kosovo in her capacity as ICTY Prosecutor; the border guard read a prepared statement saying that she would not be allowed entry.2 The whole episode took fewer than ten minutes. We got back into our vehicles and returned to Skopje—everything having transpired just as we expected.

Over the next two days, Arbour and I, along with two ICTY investigators, stayed in Skopje as negotiations played out in Belgrade. We were in frequent contact with General Wesley Clark, then the NATO Supreme Commander, who was in Belgrade meeting with Milošević in the hopes of crafting some sort of solution that would allow us access to Račak.3 Far from giving in, however, Milošević was demanding that Walker be removed as head of the KVM. We felt this was an attempt to divert attention from the question of an ICTY investigation—Milošević made this demand in response to Walker’s characterizations of the events in Račak, but only several days after the fact, and only when pressure had begun to mount on him to allow an investigation.* The question of Walker’s fate, though, became a (p.79) matter of principle for the U.S. and European governments, which did not want Milošević dictating who could head a mission operating under international auspices.*

As for ICTY access, Milošević offered various alternatives—a meeting for Arbour and me with his Minister of Justice in Belgrade, even an escorted visit to Račak with the Minister—but nothing close to what we needed to conduct a meaningful investigation. Milošević eventually gave in on Walker remaining as head of KVM, a concession that had little real consequence for Belgrade. He stood firm against allowing the ICTY access, however—something that potentially would have had very real consequences for him and his government. In classic Milošević style, he had provoked a crisis over Walker, elevating that issue and effectively linking it to the ICTY’s investigation of what Milošević’s forces were doing in Kosovo. In the end, he succeeded in forestalling the ICTY’s work by giving in on a matter that he cared little about, but that he knew Western governments would see as vitally important. As soon as it became clear that we would not get access to Kosovo—something that we knew from the outset was only a remote possibility—Arbour decided that it did not make sense to remain in Skopje any longer. We flew back to The Hague, leaving the two investigators in Macedonia in the unlikely event that some breakthrough would give us access to Kosovo. As it turned out, there never was a breakthrough, and the Prosecution continued doing all of its investigative work from outside the province.

II. Kosovo Becomes a Priority

Arbour’s decision to go to Račak was much more than a symbolic gesture, however. She wanted to force the hand of Milošević’s government, which had barred ICTY staff from continuing on-the-ground investigations in Kosovo. As the conflict between Serbian forces and Kosovar Albanian insurgents had intensified early in 1998, the ICTY had dedicated resources to the situation there and had initiated on-the-ground investigations. A small team of investigators and another lawyer in the Prosecution had started looking at potential crimes committed both by Kosovar Albanians against Serbs and by FRY and Serbian forces against Kosovar Albanians. The team had made two or three visits to Kosovo over the course of early- to mid-1998 and had interviewed witnesses to various incidents. They had also met with Serbian officials in Kosovo and Belgrade who gave the team information on crimes they alleged had been committed against Serb victims.

Despite this dual approach of one investigative team looking at crimes committed by both sides—something unique in the ICTY’s history—Belgrade came to see the ICTY investigations as much more of a threat to them, because by Fall 1998, Serbian forces were engaged in increasingly harsh tactics against the Kosovars and NATO was on the verge of intervening militarily.4 First, the FRY stopped issuing visas for ICTY investigators or lawyers to enter the country. Then, Belgrade formally notified the ICTY, though its liaison in Belgrade, Deyan (p.80) Mihov, that it could not engage in any investigative work in the province—that anything happening there was a domestic law enforcement matter for Serbia and was not in the context of an armed conflict, and therefore was outside the jurisdiction of the ICTY.

Arbour was adamant that the ICTY did have jurisdiction. The Security Council Resolution creating the ICTY5 and the Tribunal’s Statute gave the ICTY jurisdiction over crimes committed in armed conflict on the territory of the former Yugoslavia after 1 January 1991, with no end-date specified.* Although there was a legitimate question about when exactly the violence and instability in Kosovo had crossed the legal threshold to be considered an armed conflict—an issue that would be contested during the Milošević trial itself—as that situation worsened over the course of 1998, it had become increasingly clear that it had evolved into an armed conflict between the KLA and Serbian security forces.

After Račak there could be no more doubt. With the massacre of 45 people by Serbian forces in one village in a single day, it was obvious that the situation was getting out of control and that civilians were now starting to suffer the brunt of it, as they had earlier in Croatia and Bosnia. The ICTY had not been in existence when those wars began, but Arbour was determined that the Tribunal would assert its jurisdiction if it could help mitigate civilian suffering in another conflict—what she later famously referred to as “justice in real time.” When Račak occurred, she felt compelled to act. She recognized that by going to the border herself, as Chief Prosecutor, she would raise the ante on Serbia’s policy of obstructing the Tribunal’s work, making it more difficult for crimes to be committed with impunity.

Over the next month and a half, Kosovo continued to be at the center of the world’s attention as political leaders and diplomats sought to find a solution to the growing crisis in the province. With the collapse of the Rambouillet talks, all parties seemed set on a path to war. On 20 March 1999, KVM observers in Kosovo were withdrawn in anticipation of NATO military intervention.6 Coinciding with the KVM withdrawal, Serb forces launched a new offensive in central Kosovo, with a devastating impact on the civilian population.7 When NATO did intervene four days later, launching an air campaign directed at Yugoslav and Serbian military and police targets in Kosovo and Serbia proper, Serbian forces stepped up their own operations in Kosovo, with the civilian population again bearing the brunt of it. Within days, Serbian military, paramilitary, and police units had committed a number of atrocities against Kosovar Albanians. With no international observers in the province, though, it was difficult for anyone outside the province to know with any certainty what was really happening.8

Information soon began to flow, however: As the Serbian units forced tens, then hundreds, of thousands of Kosovars out of the province and into neighboring Albania, Macedonia, and Montenegro, stories of atrocities began filtering out with the refugees. It soon became clear that a highly organized and well-orchestrated operation was underway to displace as much of Kosovo’s ethnic Albanian population as possible. As people were forced across the borders, they were compelled to surrender their passports, identity cards, (p.81) vehicle licenses—anything that could be used in the future to show that they had ever lived in Kosovo. Media sources, NGOs, and governments were also soon reporting crimes of violence on a massive scale, based on the accounts of those who had fled the province.

As the evidence of these crimes multiplied, Arbour came to the conclusion that if the ICTY was to have any credibility it had to act, and act quickly, in response to the ongoing crimes. Up until this point, all of the ICTY’s investigations had focused on historical events—crimes that had been committed months or even years before. At no time had the Prosecutor initiated an investigation of crimes as they were transpiring. During the last week of March—just one week after the bombing began—Arbour took the decision to do just that. In a meeting on 31 March, Arbour instructed Nancy Paterson, another American prosecutor, and me to take the lead over the investigation with an eye toward preparing an indictment as soon as we could gather sufficient evidence of the crimes we were hearing reported.

With strong support from Chief of Investigations John Ralston, Investigations Commander Bob Reid, and Kosovo Investigation Team Leader Dennis Milner, Paterson and I began assembling a team of lawyers, investigators, and analysts who would conduct this investigation. Beyond Arbour’s instruction to be as comprehensive as possible and to move expeditiously, she left it to us to see where the evidence took us. Cognizant of the scale of what we were undertaking, we quickly worked out a division of responsibilities: I would go to the region and personally oversee the field investigations while Paterson would remain at the Tribunal, assembling the information we sent back. There, she would work closely with the military and political analysts—Philip Coo, Dolly Hanson, Ivan Lupis, Alexandra Milenov, Ivana Nizich, and Timothy Waters—who were pulling together information on the internal workings of the FRY and Serbian governments, and the legal underpinnings of their control over the military and police forces doing the actual killing.

Almost immediately, I left for Tirana to establish an operational base for investigations. It was not particularly easy to get there, as flights to the region were suspended because of the air campaign. Eventually, several investigators and I flew to Rome, drove to Bari, and took an overnight ferry across the Adriatic to Durrës—a trip we shared with dozens of young Albanian émigrés from Europe and North America coming back to fight in Kosovo.

With access to Kosovo still out of the question, however, we had to focus our efforts in surrounding countries. As most of the refugees were being expelled into Albania and Macedonia, it made sense to set up bases in Tirana and Skopje. With teams of investigators in each place, we started compiling evidence of the crimes that were occurring. We received reports from a wide variety of sources, including journalists who had interviewed victims or witnesses of atrocities, UN staff or NGOs working with the refugees, medical workers who were treating the wounded, and governments that were seeing increasing signs of the scale of crimes, largely through satellite imagery.

The most salient information came to us directly from the refugees themselves as we worked our way through refugee centers on the border with Kosovo or in other Albanian and Macedonian towns. Often, we would hear from one refugee that someone from a certain village had told him of a horrible crime that occurred there. We would track down that person and try to find out the names of those from whom he had heard about the crime. Through this process, we were able in most cases to work our way back to an eyewitness, or at least to (p.82) someone who could give us more concrete information as to what had occurred, and could tell us where to find solid evidence—such as a mass grave—if and when we again secured access to Kosovo.

A significant breakthrough came when a BBC reporter alerted me to a witness she had interviewed in one of the refugee camps outside Tirana. This young man had escaped across the border after a number of his family members had been killed in the town of Đakovica (Gjakova) in western Kosovo. The scenario that had played out with his relatives—police or paramilitary thugs coming into a home, demanding money, murdering the men and sometimes the women in the house, stealing any valuables—had become commonplace. What made this man’s case different was that he had videotaped the scene moments after the killers had left. He had inserted the footage into the middle of a recording of a soccer match, hoping that if he were caught with the tape, the Serbian authorities would view only the first bits of the recording, see that it was a football match, and then let him go. The ruse worked and he was able to smuggle the tape into Albania. For those of us conducting a long-distance investigation, this was the first close-up glance we had had of a crime scene, and the images depicted in the video footage provided powerful corroboration for this man’s story and for the accounts given by his other surviving relatives. At that point, by mid-April, we felt like we had our first solid incident for inclusion in the indictment.

I spent most of April in Albania and Macedonia overseeing the investigative efforts, remaining in close contact with Paterson and Arbour. At the end of April, however, I returned to the Tribunal for consultations with Arbour and for a comprehensive review of the evidence that we had assembled. By that point, we had amassed solid information on several horrific crimes, including mass killings in a number of locations. Even though we were still not able to access crime scenes or collect physical exhibits, we felt the evidence we had collected was sufficient to include these incidents in any indictment we would put forward. We also had clear-cut evidence of the forced deportations of hundreds of thousands people—something that was still ongoing. With this information in hand, we had an adequate crime base for bringing an indictment.

The question remained, however: an indictment against whom? The evidence of a crime base was clear, but the challenge, as is almost always the case with war crimes, was in linking these crimes either with the direct perpetrators or with their political and military superiors. Unlike crimes that occur in a domestic setting, where perpetrators are often known to the victims or witnesses, or at least have links to the location where the crime was committed, the perpetrators of war crimes are frequently from elsewhere, often from military or paramilitary units that are moving quickly through an area. As a result, even identifying the perpetrators—let alone getting evidence sufficient to prosecute them—can be extremely difficult.

Yet this is the more straightforward part: Linking an incident in some obscure village to the perpetrators’ superiors—who order or condone the atrocities but are often hundreds of miles and several layers of bureaucracy removed from the crimes themselves—requires a combination of factual evidence and a provable chain of legal or practical responsibility. It was this high threshold for establishing culpability that Milošević had always relied on to protect himself from criminal liability during the wars in Croatia and Bosnia, and it had always worked. Until Kosovo. (p.83)

III. The Tide Turns for Milošević

For most observers outside the ICTY, particularly those in the former Yugoslavia, it was beyond comprehension that Milošević had not been indicted for war crimes before 1999. Most people around the world saw Milošević as the principal architect of the wars in the Balkans and, as the authoritarian ruler of Serbia, the one ultimately responsible for the crimes committed by Serb forces first in Croatia, then in Bosnia, and finally in Kosovo—“the Butcher of the Balkans,” as the Introduction notes. His swaggering contempt for those who sought to lessen human suffering in the region and find just solutions to its problems, combined with his seeming ability to turn the violence on or off, only compounded the view of him as the one in charge.9 As someone who followed events in the former Yugoslavia very closely, I was sympathetic to these views, as was almost everyone I worked with in the Prosecution.* Yet without evidence of culpability that can stand up to scrutiny in a courtroom, this belief alone was insufficient for initiating a prosecution.

Since 1991, when the first significant war crimes were committed in Croatia—crimes that were magnified on an even larger scale during the three years of conflict in Bosnia—Milošević had been a master at protecting himself from liability. Operating behind the complex governmental structures of the FRY and Serbia, Milošević actually avoided having clear de jure responsibility for the actions of the military or police units perpetrating crimes, because they fell under the legal authority of other officials.

From May 1989 until July 1997—including the entire period of the Croatian and Bosnian conflicts—Milošević had served as president of Serbia. During the period of Yugoslavia’s dissolution, his influence extended far beyond Serbia, but each of the other constituent republics had clear de jure authority over its domestic affairs, particularly in the area of law enforcement. Similarly, primary responsibility for defense rested with the federal government.10 As fighting intensified in Croatia in the fall of 1991, the JNA increasingly came to represent parochial Serb interests; Milošević had tremendous de facto influence over this transition, and—as the SFRY leadership structures weakened—over the JNA itself. Nevertheless, as president of one constituent republic, he still had no legal authority over the JNA, which answered to the SFRY Presidency,11 a body on which Serbia was separately represented.12

After 1992, the newly formed FRY enacted a similar division of responsibilities, with the federal government continuing to control defense and foreign affairs and the two republics—Serbia and Montenegro—dealing with domestic affairs. As president of Serbia, Milošević had authority over the police forces of the Republic of Serbia, and now sat ex officio as one of three members of the VSO that had responsibility for national defense, but technically—legally—did not have clear or exclusive authority over the federal military forces, now renamed the Vojska Jugoslavije (Army of Yugoslavia or VJ), which were commanded by the president of the FRY.13 (p.84)

Thus, when the wars began in 1991, Milošević had no de jure authority over the JNA, the primary fighting force engaged on the Serbian side in Croatia. When the JNA ostensibly withdrew from Serb-occupied areas of Croatia in late 1991, much of its equipment and personnel were left behind to form the Srpska Vojska Krajina (Serbian Army of the Krajina or SVK)—a force theoretically under the control of Croatian Serb leaders. Likewise, the JNA fought at the outset of the war in Bosnia in 1992, but after its formal withdrawal in May, military units, equipment, and personnel remaining in Bosnia were simply detached from the JNA and were reconstituted as the Vojska Republike Srpske (Army of the Republika Srpska or VRS)14 under the legal authority of the RS leaders, not Milošević. Although Milošević clearly exercised great influence with the breakaway Serb governments in both Croatia and Bosnia,* they and their military forces remained outside his de jure control. The VJ—over which he had a degree of partial de jure control—would not have a direct and visible role in hostilities again until 1999, in Kosovo.

A number of other crimes in Croatia and Bosnia could be linked to paramilitary forces from Serbia itself. These paramilitary units, often styled as volunteers, fell outside any official chain of command, making it even more difficult to link Milošević or other senior officials with their actions. Although evidence eventually emerged of the role played by Serbian security services in arming, training, and even directing these irregular forces, little of that evidence had come out by the mid-1990s. As a result, although everyone suspected—believed—that Milošević had some degree of control, or at least influence, over the irregular forces that perpetrated some of the worst atrocities in Croatia and Bosnia, the provable linkages back to him were well camouflaged.

At the ICTY, there was little doubt in our minds that although Milošević may not have had strict legal authority over Serbian units involved in crimes in Bosnia and Croatia, he did exercise de facto authority over them. To anyone who followed what was happening in the former Yugoslavia, it was clear that Milošević was the one calling the shots. To prove this, however, and to take it one step further—to show that his control was such that he was aware of what was happening in some obscure village in Bosnia or Croatia—had been extremely problematic. Throughout the 1990s, Milošević was usually quite guarded in what he said to outside interlocutors, being careful not to convey anything that would directly implicate him in crimes or link him to perpetrators. There were instances when he accidentally said more than he should have, but these were few and far between, and were really not adequate enough to build a comprehensive case against him. Without outside witnesses, the ICTY was left to rely on insiders: individuals in the government or military of Serbia, or the FRY who could testify that Milošević was the ultimate decision maker. But with Milošević still firmly in power, getting insiders to talk to the ICTY had been impossible.

Although these evidentiary challenges were significant and may not have been surmountable until Kosovo, it is also true that the ICTY had really not done enough to develop the evidence against Milošević prior to 1999. This was partly due to the general approach adopted by the Prosecution and the organizational structure that approach engendered. (p.85) During its first two years of operation—the period that overlapped with the wars in Bosnia and Croatia—the Prosecution’s focus was on specific crimes, standing on their own. This was driven by several factors, most important being the need for the Prosecution to develop evidence of the crime base in those two conflicts. Although most of the crimes that ultimately ended up being charged in indictments were already known as a result of open-source reporting, full-scale investigations were necessary to develop the evidence to the point at which formal charges could be brought.

This information had to be developed from the ground up. In order to do this, the Prosecution’s Investigations Section was structured around geographically and ethnically oriented investigative teams. For example, the investigative team on which I served as the Trial Attorney was responsible for investigating Serb-perpetrated crimes in Croatia. Other teams, particularly those responsible for Bosnia, were often limited in their focus to much smaller areas, at times even to a single municipality. Moreover, different teams were set up to investigate crimes committed by different perpetrator groups—Muslims, Serbs, Croats, and later Macedonians and Albanians—such that two different teams could be looking at crimes committed in the same location. Although this focus and organizational approach were understandable at the outset, not enough effort was made over time to tie these disparate investigations together and to develop a more comprehensive understanding of how crimes at ground level were linked back to individuals in senior leadership positions, such as Milošević. In effect, each of these investigative teams operated in isolation with relatively little strategic guidance from the Investigations Section leadership.

The result of this approach was that the Prosecution’s legal and investigative resources were applied to individual cases without a strategic vision or a clear concept of how to advance the investigations to the next level—that is, to encompass the responsibility of senior leaders. Moreover, the geographical organization gave investigative and prosecutorial teams incentives to assign ultimate responsibility for crimes to actors within their region, in ways that positively discouraged thinking about connections across or above regions.* Some investigations and trials involving relatively minor figures garnered many more resources than they should have. Although the accused in these cases may have been responsible for some horrendous crimes, they were not of a level that they should have forestalled investigations of individuals such as Milošević—the key actors whom the Tribunal was expected to prosecute. This failure, then, by the ICTY to shift its approach earlier to a more strategic perspective and to apply resources accordingly in a coordinated fashion was a factor in the delay in Milošević’s being indicted. Still, I can say with confidence that this was the result of institutional inertia–an unwillingness to revamp a structure and approach that had been erected over the preceding five years–rather than of political motivation. Outside observers who have attributed this delay to a political calculus or to the effects of political pressure brought to bear against the Prosecutor to pursue one course or another—speculations or conspiracy theories of that sort—simply are not supported by what those of us in a position to know saw occurring.

Whatever the institutional shortcomings, however, with Kosovo the whole situation changed. Recognizing the enormity of what was happening, the leadership in the Prosecution—Arbour of (p.86) course, but also Deputy Prosecutor Graham Blewitt, Ralston, and Reid—marshalled the legal and investigative resources necessary to build a case against Milošević. More significant, perhaps, was that fact that for the first time during the wars, Milošević was legally in a position of command over the individuals perpetrating the crimes. In July 1997, he had shifted from his role as president of Serbia to become the president of the FRY,15 and in this new role, he became the Supreme Commander (Vrhovni komandant) of the VJ, a position he held until his fall from power in October 2000. We believed this also gave him operational authority over Serbian and FRY police units during a state of war, which covered nearly the whole period of the Kosovo conflict.16 This formal authority greatly simplified the construction of a case against Milošević, because we knew from our interviews and other information that the killings and deportations were being committed by a mix of military and police units.

Also, where Kosovo was concerned, Milošević was not as guarded in his dealings with outside interlocutors. The carefully constructed language he had used when talking about Croatia and Bosnia was dropped, replaced with brash, aggressive statements regarding Kosovo. He still refused to admit that Serb forces were responsible for crimes, but he was much more assertive of Serbia’s right to do whatever it felt necessary in Kosovo. Because Kosovo was a province of Serbia, he viewed the situation there as a purely domestic matter in which outside interference would not be tolerated. In discussions with foreign diplomats and military officials, Milošević was more open than he had ever been in the past about his direct role in the current conflict in Kosovo, acknowledging his authority over the forces operating there.

Still, once the NATO air campaign began, and the worst atrocities started occurring, it was difficult to substantiate reports of specific incidents because there were virtually no outside observers left in the province. For the few international interlocutors still talking to Milošević at that point, there was little concrete evidence available with which to confront him. The one aspect that was obvious to everyone was the mass exodus of ethnic Albanian civilians from Kosovo, who came to neighboring countries in the hundreds of thousands with stories of the violence that had been directed toward their community and of forced expulsions from their homes. Milošević dismissed it all as Albanian lies or misrepresentations of incidents where the supposed victims had actually been combatants engaged in conflict with legitimate Serbian forces. As to the expulsions, he waved those off as well, saying that those leaving Kosovo were doing so voluntarily, fleeing the NATO bombing.

Milošević repeated this explanation when he met with the Kosovar Albanian leader, Ibrahim Rugova, in Belgrade during the bombing. Milošević had had little direct contact with Albanians in the past, but with the war in full swing, no apparent way to end the NATO bombing campaign, and many people speculating about Rugova’s well-being, Milošević had summoned Rugova to a meeting—their second in less than a year*—and had dispatched a car to pick him up. After the meeting, Rugova was allowed to leave Serbia, and he was given refuge by the Italian government.17 Shortly after he arrived in early May 1999, I met him in a Renaissance villa in the hills outside Rome, interviewing him in a room with 16th-century frescoes on the ceiling—a far cry from the chaos he had just left in Kosovo, and from which I had recently come in Albania. His chief of staff, Adnan Merovci, who had accompanied him to the meeting with Milošević and who had come with him to Rome, was in the meeting as (p.87) well. Merovci had taken detailed notes of the meeting with Milošević and was able to recount in great detail what had been discussed.

What was significant about Rugova’s meeting with Milošević was that Rugova had been on the ground in Kosovo after the NATO bombing campaign had begun and as the violence against civilians intensified, and thus had been able to give Milošević a firsthand account of crimes being committed by forces under his command. This differed from what outside interlocutors, with no access to Kosovo itself, could tell Milošević. When they raised reports of crimes, Milošević generally debunked the allegations as exaggerations or propaganda; with Rugova, he had a harder time doing this, as Rugova was able to cite specific incidents, and Milošević would answer by saying that he would look into them—a shift from his usual posture of denial that such things were occurring.18 As I left the meeting with Rugova and Merovci, and drove back to the Rome airport, I felt that we had finally crossed the threshold of direct evidence showing Milošević’s knowledge of the violence being perpetrated by forces under his command and of his de facto supervisory role in Kosovo. Rugova and Merovci had also supplied compelling evidence against two other individuals who would ultimately be charged with Milošević—Serbian President Milan Milutinović and FRY Deputy Prime Minister Nikola Šainović, Milošević’s special representative for the Kosovo situation. Rugova and Merovci had had direct contact with both men and were thus able to describe the extent of their personal engagement in Kosovo.19

Although the information from Rugova and Merovci was more pointed than that coming from Milošević’s other international interlocutors, by early May we had compiled a wide array of statements by Milošević—through interviews with individuals who had met with him and from other sources such as television reports—that corroborated his direct supervisory role over events in Kosovo. Combined with what we had been able to establish regarding his de jure responsibilities, we felt confident that we had by that point a prosecutable case against Milošević.

Ultimately, the success of investigations against Milošević and the whole Belgrade leadership may have been dependent on the unique situation in Kosovo—specifically Milošević’s changed de jure role and the more open and direct exercise of Serbian power there. The final, critical element was the cracking of his regime, which paved the way for insider witnesses to cooperate with ICTY investigations and also for Serbian authorities to turn over incriminating documents.20 But this came later, of course, which meant we could not rely on information from Belgrade as we prepared a trial-ready indictment.

IV. The Indictment

As we had done with the investigation, Paterson and I initially divided up responsibility for drafting the indictment. I would focus on the overall factual background section, the facts of the incidents alleged in the particular charges, and the charges themselves; Paterson would focus on the sections on the accused and the assertions of criminal responsibility. As our work progressed, there was a fair bit of overlap between these breakdowns of responsibility, and we were also assisted in our drafting efforts by the analysts working on the case.

Although Milošević had become the principal target of the investigation, we knew that other senior Serbian officials shared responsibility. The inner workings of the Serbian leadership structure were still quite opaque to us at that point, however: We did not have the advantage of any insider witnesses who could shed light on how individuals with formal legal (p.88) authority actually exercised their power, or how they interacted with others ostensibly above or below them in the chain of command. We were able to establish the de jure roles of key figures, and through the testimonies of various outsiders who had been their interlocutors, to corroborate their de facto roles. There was, however, an acknowledged degree of inexactitude when we made assertions as to how each of the individuals ultimately charged actually fit into the Serbian hierarchy of power.

We therefore adopted a cautious approach in charging, in which we gave greater weight to their de jure roles, but also took into account the totality of the circumstantial evidence about the influence they exercised in Kosovo. One consideration was ensuring that those who had clear-cut de jure authority over any of the military or police forces linked with crimes would be charged. In this way, we hoped to avoid a scenario in which someone we failed to charge—and who actually had de jure command status—would become the scapegoat for everyone who had been charged.

We were quite confident we could prove that those at the most senior leadership levels in the Serbian and FRY governments had knowledge of what was occurring on the ground in Kosovo, or that they certainly should have from their subordinates. The extent of the crimes and the fact that they were occurring in such a concentrated period of time made it very difficult for anyone with de jure responsibility to plead ignorance. A harder question arose when we started going down the chain of command to those in charge of operational field components. Although we knew the identity of most of the military and police units operating in Kosovo, we were not clearly able to establish which specific units were in which locations at which points—and therefore, we could not say with specificity which units were responsible for particular crimes. Much of that evidence would come later, and later charges would reflect that more precisely; as we drafted this indictment, however, we focused on individuals who had authority over all military or police units operating in the Kosovo theater.

Thus, under the theory of superior responsibility, we charged Milošević in his de jure role as president of the FRY and Supreme Commander of the VJ, and as the one in de facto control of Serbia’s governmental structures. We also charged President Milutinović, VJ Chief of the General Staff Dragoljub Ojdanić, and Serbian Interior Minister Vlajko Stojiljković under this theory. Milošević and these other three individuals were also charged under the theory of individual criminal responsibility, as was Deputy Prime Minister Šainović (whose formal legal liability was different—see endnote21).

As we began finalizing decisions on which crime incidents to charge, we focused on those for which we had extremely solid evidence—numerous independently corroborated witness statements, or corroborative physical or documentary evidence. Reports of additional atrocities continued to come in every day, and many of them seemed credible; nevertheless, we felt that we had to set a cutoff point and go with only those crimes for which we had conclusive evidence at the point at which we were otherwise ready to present an indictment. We ultimately settled on seven incidents of mass killing: Račak on 15 January 1999; Bela Crkva (Bellacerka) on 25 March; Velika Kruša (Krusha e Madhe) and Mala Kruša (Krusha e Vogel) on 26 March; Đakovica on 26 March; Crkolez (Padalishte) on 27 March; Srbica (Skënderaj) on 27 March; and the Ćerim (Qerim) district22 of Đakovica on 2 April. In all, these incidents accounted for over five hundred murders, of which 341 victims were identified by name in (p.89) the indictment. These killings were charged as crimes against humanity and as violations of the laws or customs of war.* Additionally, we charged the five Accused with crimes against humanity for the forced deportations of 740,000 Kosovar Albanian civilians, citing the facts of expulsions that had occurred in 10 different municipalities. Finally, we charged them with crimes against humanity in an overarching persecution count, which encompassed the totality of Serbian actions against the civilian population in Kosovo.23

One charge conspicuous by its absence was genocide. When the indictment was eventually announced, there was a very negative reaction among Kosovar Albanians, and some degree of surprise by international civil society organizations, that we had not charged this crime.24 There were different views in the ICTY at the time as to whether it should be included or not, and it ended up being a subject of exhaustive discussion. Ultimately, a consensus was reached—and endorsed by Arbour—that although we had compelling evidence of a number of incidents, it was difficult for us, from outside, to paint a complete picture of what had occurred in Kosovo. We fully anticipated that we would get access to the ground once the conflict was over and that we might then be able to develop a clearer idea of what had occurred throughout the province and what had been the intent of the perpetrators.

To some extent, the issue revolved around the number of deaths. Although there is no threshold level necessary to establish the intent to “destroy, in whole or in part, a national, ethnical, racial or religious group,”25 certain conclusions can be drawn from the numbers of people who are murdered and the scale of the crimes.26 In May 1999, we knew that a number of mass killings had occurred, and we felt quite certain that there were others we did not yet know about. Nevertheless, we could not be absolutely sure, so we held off on charging genocide until we could construct an irrefutable crime base. It was a conservative approach, but we undertook it recognizing a genocide charge would be so explosive that we wanted to have all of the evidence in front of us before deciding to go forward with it—something we just were not in a position to do while the conflict was still ongoing and we did not have access to Kosovo. In the event, although we did later gain extensive access to the area for our investigations, no genocide charge for Kosovo ever was filed.

By mid-May, we had completed a draft of the indictment and had compiled the supporting evidentiary materials. Following ICTY practice, we presented our draft indictment and the evidence we were basing it on to a group of attorneys from the Prosecution. Paterson and I presented our case to the assembled lawyers and then spent several hours explaining how the allegations in the indictment were supported by the evidence. Although indictment reviews were never a particularly enjoyable experience for the prosecutors presenting a case, they were extremely useful exercises. By bringing in fresh sets of eyes to examine the responsible attorneys’ work product, these reviews often revealed holes in evidentiary theories or even simple factual errors that might have been missed by the lawyers who had been completely enmeshed in the case. (p.90)

After the indictment review, Paterson and I met with Arbour at length and discussed the recommendations that had come out of the review panel. She accepted some of them, and had us incorporate those changes into the final indictment; others she rejected, however, exercising her authority as the final arbiter. In the end, the version that emerged from the indictment review and from the discussions with Arbour was not significantly different from what we had initially put forward—the theory of liability, the specific charges, the choice of the five Accused. As we revised the indictment, though, we also completed the process of assembling the voluminous supporting evidentiary materials that were to be submitted with the indictment to the confirming judge. In effect, all allegations or statements of fact in the indictment were corroborated by items in the supporting materials, which were referred to in an annotated version of the indictment supplied to the judge. The process of compiling all of this material into an accessible format, of cross-referencing information, and of reconfiguring things after the inevitable revisions to the draft indictment was a laborious one.* As we were preparing to issue the first indictment of a sitting head of state, we were particularly mindful of the pressure to get it all right.

On Saturday, 22 May, Paterson and I worked through the day finalizing the package. Into the evening, we were still making changes in the indictment and every shift in language, no matter how minor, necessitated a further discussion with Arbour. We ultimately arrived at a final version late that evening and Arbour signed it, with Paterson and me looking over her shoulder.

The next morning, I delivered the indictment and supporting material to the confirming judge, David Hunt of Australia. I spent an hour or so walking him and his legal officer through the indictment and the supporting materials, making sure that he was clear on where references to every evidentiary item could be found. After reviewing the indictment package, Judge Hunt signed the confirmation order the following day, 24 May. At the request of the Prosecutor, he also signed orders for the arrest and freezing of assets of the Accused, which were transmitted to all of the Member States of the United Nations and to Switzerland. Finally, the judge signed an order keeping the indictment under seal until Thursday, 27 May.27 This was done at our request, so that Arbour could inform certain international organizations and governments with people on the ground in Serbia that this indictment was coming, giving them time to take precautionary measures in the event that they felt any of their staff might be put in harm’s way as a result. Interestingly, Arbour had felt strongly that she needed to have a final signed and confirmed indictment before giving any warning or notice of what was about to happen, because she anticipated that some governments might object and pressure her to delay the indictment. If the indictment was already finalized, they would have no choice but to accept it as a fact.

Ironically, when the indictment was announced, there was a lot of speculation in the media, and particularly in Serbia, that the ICTY had acted under pressure from NATO governments to charge Milošević. In fact, the opposite was true: As Arbour had correctly anticipated, there was actually a fair degree of consternation among some NATO governments that saw the indictment as an impediment to ending the war.28 Rather than viewing it as (p.91) something that increased pressure on Milošević and therefore was in their interest—and that they had desired—they feared an indictment of Milošević would encourage him to refuse to negotiate an agreement ending the conflict. As it turned out, however, the indictment had no such effect. Fewer than three weeks later, the FRY entered into the Kumanovo agreement, ending the war and committing to a withdrawal of Serbian forces from Kosovo.29 *

Kosovo provided the perfect scenario for the ICTY to finally establish Milošević’s culpability and to indict him for crimes against humanity and war crimes. The combination of his changed de jure status and his own brashness was his undoing. In the aftermath of the Kosovo war, although Milošević remained in power, he was clearly weakened. His efforts to portray the Kosovo war as a victory fell on deaf ears among most in Serbia, especially as Kosovo had effectively been partitioned off and placed under United Nations’ administration. Virtually all vestiges of Serbian authority in the province had disappeared, and control had been taken over by NATO troops. In this atmosphere, and with the Serbian economy in shambles, Milošević’s authority began to evaporate; when he foolishly called elections in October 2000 under new rules allowing for direct election of the FRY president, he was defeated by a newly unified opposition. His efforts to manipulate the results and cling to power failed and, facing a growing public revolt, he fell from power—an indicted war criminal.

Although Kosovo proved to be Milošević’s undoing from both a political and legal perspective, it also opened the door to additional criminal charges. With his grip on power gone, some with inside knowledge of Milošević’s regime and of his personal role in the Balkan wars began to talk. Information that had been zealously guarded during Milošević’s rule slowly began leaking out, and this provided the evidence necessary to bring the follow-on indictments against Milošević for crimes in Croatia and Bosnia.§ And, less than a year after his fall from power, the government of Serbian Prime Minister Zoran Đinđić took the difficult decision to transfer Milošević to the Tribunal, where he ultimately went on trial for crimes committed in Kosovo, Bosnia, and Croatia.

Some criticize the Tribunal for not issuing indictments against Milošević earlier, when the wars in Croatia and Bosnia were still ongoing. Whatever the merits of that view, the Kosovo investigation and indictment are not subject to the same criticism. They were undertaken with speed and attention to events unfolding in real time, marshalling the Tribunal’s considerable resources to take advantage of a unique set of circumstances. Moreover, to the degree it may also have weakened Milošević’s rule and made his appearance at the Tribunal more possible, the initial Kosovo indictment—though it addressed only the last of the wars he directed—advanced the project of bringing Milošević to justice for all his crimes.

Notes:

(1) Horror at Kosovo Massacre, BBC ONLINE NETWORK, 17 Jan. 1999.

(2) KIM, KOSOVO CONFLICT CHRONOLOGY, CRS REP. 11.

(3) KIM, KOSOVO CONFLICT CHRONOLOGY 12.

(*) Indicative of this was a telephone call Arbour received from U.S. Special Envoy Richard Holbrooke shortly after we arrived in Skopje; Holbrooke said that Arbour should stay where she was as her presence there was putting incredible pressure on Milošević.

(*) Despite the unified front in support of Walker, some outside observers criticized him for having exceeded his role as a neutral monitor and for, in fact, using the events at Račak as a pretext to press for military action. See Press Release, Media Ignore Questions about Incident That Sparked Kosovo War, FAIR.ORG (Fairness and Accuracy in Reporting) (1 Feb. 2001), http://www.fair.org/index.php?page=1877.

(4) See, e.g., Solana, Secretary General, Press Conference, NATO (13 Oct. 1998) (transcript, http://www.nato.int/docu/speech/1998/s981013b.htm) (announcing the issuance of an activation order for NATO (p.528) forces following Holbrooke’s negotiations); Cohen, NATO Nears Final Order to Approve Kosovo Strike, N.Y. TIMES, 11 Oct. 1998.

(5) S.C. Res. 827, U.N. Doc. S/RES/827 (25 May 1993).

(*) Stat. ICTY, Art. 1. The Security Council determines when the conditions for the ICTY’s jurisdiction will terminate; within that framework, the Prosecution and the Chambers determine the scope of that jurisdiction and its application to particular situations.

(6) YOUNGS, OAKES & BOWERS, INT’L AFFAIRS & DEFENCE, KOSOVO, RESEARCH PAPER 99/34, AT 17 (U.K.H.C.).

(7) YOUNGS ET AL., INT’L AFFAIRS & DEFENCE: KOSOVO 18.

(8) JUDAH, KOSOVO: WAR AND REVENGE 237–48.

(9) Atlas, Milosevic: Arsonist and Fireman, SUN SENTINEL, 6 Apr. 1999.

(*) Prelec, who joined the case after this point, presents a different view of Milošević’s responsibility, though one he also acknowledges developing later in the case.

(10) CONST. SFRY, Art. 135-6.

(11) CONST. SFRY, Art. 313, 316.

(12) CONST. SFRY, Art. 321.

(13) CONST. SFRY, Art. 77 (7) and 135 (“In wartime and peacetime, the Army of Yugoslavia shall be under the command of the President of the Republic, pursuant to decisions by the Supreme Defense Council. The Supreme Defense Council shall be made up of the President of the Republic and presidents of the member republics. The President of the Republic shall preside over the Supreme Defense Council.”).

(14) JUDAH, THE SERBS: HISTORY, MYTH, AND THE DESTRUCTION OF YUGOSLAVIA 230.

(*) Prelec, Hartmann, and Nielsen discuss the various forms of support and control exercised by the VJ, SDB, and other elements of the FRY and Serbian governments over Serb forces in Bosnia and Croatia.

(*) Hartmann describes an analogous process working in reverse in the post-Milošević trials of Belgrade-based figures, who were described as part of a broader joint criminal enterprise or JCE under Milošević in his trial, but as subordinated to Bosnian Serb leadership in their own trials and in Karadžić.

(15) JUDAH, KOSOVO: WAR AND REVENGE 33.

(16) Kosovo Indictment ¶ 57.

(*) Surroi describes the earlier meeting, at 222-224.

(17) Serbs Allow Kosovo Leader to Go to Italy, CHI. TRIB., 6 May 1999.

(18) Milošević case (123), Trial Tr. 4228-30 (3 May 2002).

(19) At trial, Milutinović was acquitted and Šainović convicted. Pros. v. Šainović et al., Judgment–Volume 3 of 4 ¶¶ 475, 1170 (26 Feb. 2009).

(20) See Del Ponte’s chapter for further discussion of the Bosnia and Croatia indictments.

(21) Kosovo Indictment. See Stat. ICTY, Art. 7(1), (3). Šainović was not charged under a superior responsibility theory because his position did not place him in formal control of forces in a way that would have given him legal responsibility to prevent or punish crimes committed by his subordinates.

(22) Contrary to the default practice, in the indictment it is identified only by its Albanian name, Qerim. Kosovo Indictment ¶ 98(g).

(*) The victims whose names were known are listed in Kosovo Indictment, Schedule A.

(23) Kosovo Indictment ¶ 100 (Count 4).

(24) Scharf, Indictment of Slobodan Milosevic, ASIL INSIGHTS (1999).

(25) Stat. ICTY, Art. 4.

(26) SIMON, LAWS OF GENOCIDE 59–60.

() Contrast this approach with how, in her chapter, Del Ponte describes her decision-making process for the Bosnia phase genocide charges, which were also the subject of debate with the Prosecution.

(*) See Trix at 246 and 555, n. 95 for a critique of the indictment’s choice to adopt Serbian nomenclature and the Usage Note at xxiii-xxv for further discussion of the issue.

(27) Press Release, ICTY, President Milosevic and Four Other Senior FRY Officials Indicted (27 May 1999).

(28) Perlez, Milosevic Indictment Will Likely Frustrate Diplomatic Efforts, N.Y. TIMES, 28 May 1999.

(29) War in Kosovo—End to the Air War, S.F. CHRON., 9 June 1999.

(*) Greenawalt discusses claims about the strategic interaction between the indictment and the war, at 383-384.

() Serbian institutions continued to operate in some of the enclaves, and especially in the area north of the Ibar river.

() See discussion in Bieber.

(§) Some notable examples of insider witnesses include Aleksander Vasiljević, Ratomir Tanić, Milan Babić, and Slobodan Lazarević.

() See Várady’s and Pešić’s chapters on this episode.