Milosevic and Genocide: Has the Prosecution Made the Case?

Author: Stacy Sullivan, The Hague
Uploaded: Friday, 20 February, 2004

According to a valuable recent IWPR report, many legal experts fear that Milosevic may get off the genocide charge against him because the burden of proof is too high

When prosecutors opened their case against Slobodan Milosevic on 12 February 2002, they told the court that not only would his trial provide the world with a full picture of the ‘medieval savagery’ that stalked the Balkans throughout the Nineties, but that they would also prove that the former Serbian president was guilty of the gravest crime known to mankind - genocide.

Two years on, after hearing nearly 300 witnesses - some of them high-level insiders who have turned on their former leader - and presenting thousands of pages of documents, including telephone intercepts, military orders and transcripts of political meetings, they are resting their case. But many legal experts say they fear that the prosecution has not made the case for genocide, in part because the United Nations tribunal has set the bar for doing so extremely high. Already, in what appears to be an effort to brace tribunal observers for a possible acquittal, chief prosecutor Carla del Ponte has warned that the Belgrade authorities have jeopardised the genocide case by failing to provide her with access to military documents from the state archives.

Milosevic is the man alleged to have orchestrated the break-up of Yugoslavia and the horrific atrocities that went with it. Given the mountain of evidence prosecutors have tendered as evidence, showing his active involvement in arming Serbs in both Bosnia and Croatia - not to mention his role in Kosovo - few have any doubts that the former president will be convicted of crimes against humanity.

But in order to prove genocide, prosecutors need to show that Milosevic orchestrated the crimes with the specific intent to destroy Bosnian Muslims as a people. Since the prosecution has not been able to present unequivocal evidence of genocidal intent - a military order calling for the liquidation of all of the Bosnian Muslims, for example - the experts say that based on earlier rulings, they have serious doubts that the judges will issue a guilty verdict.

An acquittal, they say, would have serious implications not only for attempts to prosecute genocide in the future, but also for efforts that might be undertaken to prevent it from occurring. It would also disappoint victims, and provide ammunition for those who would deny that genocide took place. ‘If the court does not find Milosevic guilty of genocide, that would be a very serious problem because it would mean that the definition of genocide is so specific that it is unmanageable,’ said Ivo Banac, a history professor at Yale University who was recently elected as a member of Croatia's parliament, representing the Liberal Party. ‘This would have enormous implications for conflicts yet unknown.’

Samantha Power, author of the Pulitzer Prize-winning book A Problem From Hell: America in the Age of Genocide, which examines why states don't act to prevent genocide, said she feared an acquittal would provide governments another reason to remain passive. ‘If the bar is that high, it will be so much easier for states to argue that something is not genocide,’ she told IWPR. That will make it difficult to prosecute future genocide cases. ‘If Milosevic is acquitted, and if the Iraqi tribunal were to take the standards set by the UN tribunal, Sadaam Hussein in the Kurdish case would probably not meet that standard,’ said Power.

By far the most serious consequences of an acquittal on genocide charges, however, would be for Bosnia's victims. According to Power, ‘One of the downsides in the creation of a stigma around the word and the crime of genocide is that victims often feel somehow that they are being told that their suffering isn't worthy if they don't get a genocide conviction. Bosnian Muslims may be made to feel that they didn't make the cut.’


How the Bar Was Set

Prosecutors at the UN tribunal for Rwanda have managed to secure about a dozen genocide convictions. But as experts interviewed by IWPR pointed out, it was easier to prove genocide in Rwanda. ‘In Rwanda, the genocidaires [perpetrators of genocide] killed 75 per cent of the Tutsi population, and they announced their plans beforehand,’ said Eric Markusen, a professor in the Department for Holocaust and Genocide Studies at the Danish Institute for International Studies. He added that many of the accused on trial in Arusha had been heard making public speeches advocating the murder of Tutsis. ‘Bosnia wasn't that clear-cut and the leaders, or at least Milosevic, were sophisticated enough not to state their plans publicly,’ said Markusen.

Prosecutors at Yugoslav tribunal have thus far attempted to prosecute three other suspects for genocide.

The first was Goran Jelesic, commander of the notorious Luka camp in Brcko where thousands of Bosnian Muslims and Croats were imprisoned, beaten, or killed. Jelesic introduced himself to Luka inmates as ‘the Serbian Adolf,’ and proclaimed that he had gone to Brcko to kill Muslims. Jelesic was indicted for violations of the laws or customs of war, crimes against humanity and genocide. The evidence against him - which included numerous eye-witnesses to murder - was overwhelming, and he pleaded guilty to all but the genocide count and was tried only for that.

Although Jelesic had clearly expressed intent, which is supposed to be the hardest part about securing a genocide conviction, the prosecution could not secure a conviction. As soon as they finished their case, before Jelesic's lawyers even had a chance to argue their defence, the judges ruled in October 1999 that the prosecution failed to make the case. ‘The prosecution put forth a brilliant list of circumstantial indicators of genocidal intent,’ said Markusen, ‘But the trial chamber said more or less that the prosecution did not make the case that genocide occurred.’ Stating that they believed Jelesic was mentally unfit, the judges ruled that Jelesic was not acting as part of a larger, organised plan. ‘At the time, there was a sense that the judges wanted to reserve the crime of genocide for the higher-ups,’ said Power.

Not long after the Jelesic case, the tribunal did hand down a genocide conviction. In August 2001, Radislav Krstic, the Bosnian Serb general indicted for orchestrating the 1995 Srebrenica massacre in which more than 7,000 Muslim men and boys were summarily executed was found guilty of genocide and sentenced to 46 years. To make their case, prosecutors detailed how well-planned the Srebrenica operation was - showing that buses and petrol had been procured, along with blindfolds and wrist restraints. They presented the testimony not only of several massacre survivors, but also of a member of one of the execution squads, Drazen Erdemovic, who pleaded guilty to the crime. And perhaps most importantly, they presented military orders and telephone intercepts showing that General Krstic ordered the killings. Krstic's lawyers challenged the ruling, and the case is now in the appeals chamber.

With one genocide conviction behind them, prosecutors hoped they might be able to secure another in their case against Milom

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