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4 November 2002

Blame it on the archduke

Adam Sage watches Slobodan Milosevic, on trial in The Hague, frustrate the judge and the prosecuting

By Adam Sage

In courtroom number one at the international criminal tribunal in The Hague, Judge Richard May frowned. Here he was, presiding over the most important case of his life – the most important case held anywhere since the Nuremberg trials – and it was slipping out of control. It would have been difficult enough under any circumstances to try Slobodan Milosevic in connection with almost a decade of events in the Balkans. But with the former Serbian ruler bent on distorting the judicial framework that May had elaborated, the whole thing was becoming unwieldy – and the judge frustrated.

May leant forward, passed a weary hand across his brow and looked with ill-disguised anger as Milosevic cross-examined the Croatian head of state, Stjepan Mesic.

To a legal mind such as May’s, there were obvious questions to put to Mesic, who had just given evidence about the 1991 conflict in Croatia that presaged the break-up of the former Yugoslavia. What were the Serbian paramilitaries doing at the time? How many of them were there? Who was their head?

But May was not asking the questions, Milosevic was, and he was unconcerned by such details. No, what interested him was the broad sweep of a Balkan history in which, he said, Serbs had been confined to the role of innocent victims. He cited, for example, a celebrated Croatian intellectual, Ante Starcevic, to back up his claim. Starcevic, he said, had described the Serbs as “filthy spawn, horrible slaves, people who were fit for the axe, Austrian dogs, and inflated bags”.

May was puzzled: “When was this kind of thing written?”

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Milosevic answered: “In 1870.”

Mesic cut in, arguing that Serbian expansionism was even older, dating from the writings of the academic Vuk Stefanovic Karadzic, who was born in 1787. “He said everyone is a Serb, that the Croats were nothing but Serbs of Catholic faith.” To prove his point, Mesic evoked the assassination of Archduke Franz Ferdinand by Serbian nationalists in Sarajevo in 1914.

By now, May had had enough: “The trial chamber is not assisted by the exchange of abuse . . . of 100 years ago.”

He was right. Here, at Milosevic’s trial for genocide, crimes against humanity and war crimes at the International Criminal Tribunal for the Former Yugoslavia in The Hague, there are eight years of events – starting in 1991 and ending in 1999 – and 66 charges.

The first six months were taken up with the prosecution case concerning Kosovo, in 1999. The next six months will look at the Croatian and Bosnian wars, before Milosevic begins his defence. A verdict is not expected before the end of next year.

No wonder, then, that May is determined to keep the trial within the pre-conceived framework. After all, it is a complicated task to find out what happened in the Balkans in the 1990s, without worrying about the 19th century there.

Yet Milosevic refuses this logic, implying that he is not a normal defendant wanting to disprove the allegations he is facing. Instead, he is to undermine the entire courtroom process, and any argument – historical, geographical, political, sociologicial – is a weapon to him.

Sometimes cleverly, often cynically, he plays upon the weaknesses of a court that by no means enjoys universal acceptance, consistently evoking events beyond its remit to underline his claim that it is an arbitrary and unfair institution. This strategy enables him to dominate proceedings in The Hague, where his absurd conspiracy theories are far more captivating than the slow, painstaking and jargon-ridden case built by the prosecution barristers.

Consider, for instance, the witness who followed Mesic into courtroom number one – a Serbian soldier, born in Croatia, who was referred to only as C-037 to protect his identity.

He was there to talk about the violence that spread across Western Slavonia in Croatia in 1991, but found himself cross-examined on the detention camps set up by the Croatian Ustashas who collaborated with the Nazis during the Second World War.

“My parents,” said witness C-037, “were born in Croatia. Their entire families, all their relatives, were killed. As children, they were in Ustasha camps. But it was Croats who saved them from these Ustasha camps. So in our [Serbo-Croat] history, we have cases when we were killing each other, but there are also cases when we were saving, rescuing each other.”

Sitting at the judicial bench that overlooks the courtroom, May was wearing his frown. “We need, Mr Milosevic, to consider where this cross-examination is going,” he said. “You’re asking this witness about events long before his birth. I doubt that there’s a great deal of point in that.”

From a legal perspective, the judge was, no doubt, right again – as he is on almost every occasion that he admonishes the former Serbian leader. Time after time, he warns Milosevic, who is defending himself, to stick to the pertinent legal facts. Time after time, Milosevic ignores May and continues with a line of questioning that is at best obtuse, at worst irrelevant.

In March, for instance, the former Liberal Democrat leader Lord (Paddy) Ashdown gave evidence in The Hague about a meeting with Milosevic in Belgrade in 1998, when he told the Serbian leader to stop human rights abuses in Kosovo.

“I told you in specific terms that if you went on acting in this fashion, the international community would have to act, and in the end they did have to act,” Ashdown said, looking directly at Milosevic across the courtroom. “And I warned you that you would end up in this court. And here you are.”

The evidence was crucial, since the prosecution will secure a conviction if it can show that Milosevic knew his forces were committing atrocities, and that he did nothing to stop them.

Yet in cross-examination, Milosevic failed to ask Lord Ashdown a single question about the 1998 meeting, and instead tried to extract an admission that the 1999 Nato bombing raids in Serbia were against international law.

Slobodan Milosevic may be a lawyer by training, but he approaches the international tribunal as a Marxist-Leninist – assuming that criminal justice is a battleground in the all-consuming political war. In his world, you do not probe the evidence, you attempt to bludgeon the adversary into submission, mindful that the result will be determined by the prevailing balance of power.

Milosevic’s version of Marxist-Leninism is soaked in ancestral Serbian nationalism, and he maintains that he is in The Hague as the result of an international plot against his country. It is difficult to unravel the threads of his reasoning, but he seems to discern a class enemy represented by American business interests, as well as a national enemy, Germany, which wanted revenge for defeat in the Second World War. Together, he believes, they destroyed the former Yugoslavia, and put him in the dock.

The courtroom in The Hague is small, with Milosevic sitting at a pale wooden desk two or three yards away from the prosecution. But to the observers, who are parked behind bullet-proof glass, the exchanges in the trial chamber are bizarre, rather like watching opposing football teams play on two different pitches. On one pitch is the prosecution, with its careful legal construction. On the other is Milosevic, riding roughshod over fact as he pursues what he purports to see as the global vendetta against his Serbian compatriots.

In such circumstances, neither side can fail to score goals. But which ones count? Prosecutors say it is theirs, since theirs should secure the guilty verdict that would leave Milosevic as the first head of state to be condemned by international justice. On the first day of the hearing, on 12 February, the chief prosecutor in The Hague, Carla del Ponte, said the trial would be an exemplary occasion – “the most powerful demonstration that no one is above the law”.

So far, it has been rather less clear-cut. True, the prosecution has supplied evidence of atrocities committed in Kosovo by Serbian forces obeying a chain of command that led up to Milosevic. But there has been no proof to date that Milosevic ordered these atrocities, no insider witness to reveal the secrets of the Serbian or Yugoslav presidencies when he held power, and no single overwhelming piece of evidence against him.

For Del Ponte, there is a danger. She wanted the case to serve as an example, and so far it is: an example of how difficult it can be to try a defendant who refuses to accept the jurisdiction that is trying him.

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