The Spectator

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Let Slobbo speak for himself
John Laughland says that the case against Milosevic has
all but collapsed for lack of evidence

For a few hours on Monday, the world’s human rights establishment was
seized by terror. Slobodan Milosevic had been due to begin his defence at
the International Criminal Tribunal for the former Yugoslavia (ICTY) in
The Hague, but instead discussion focused on the former president’s
fragile health, which has been made worse by the rigours of the trial.
When the presiding judge, Patrick Robinson, said that a ‘radical review’
of the proceedi ngs would now be necessary, many do-gooders feared
that their worst nightmare was about to be realised — that the
international community’s main trophy in its crusade for morality mig ht, if
only on medical grounds, be allowed to walk free.

Few human rights activists had ever contemplated such an outcome, still
less an acquitta l. The presumption of innocence has never counted for
much in the highly politicised world of international humanitarian law.
One war crimes expert, James Gow, said on Channel 4 on Monday that it
would be better if Milosevic died in the dock, because if the trial ran its
course he might be sentenced for only relatively minor charges. That
ought to be awfully embarrassing for those like Gow who have assured
us that he is as guilty as hell. Fortunately for them, the ICTY is not really
in the business of acquit tal. As one academic specialist on the ICTY,
Professor Michael Scharf, has noted approvingly, the ICTY’s rules were
designed ‘to minimise the possibility of a charge being dismissed f or lack
of evidence’, a sentiment of which the Queen of Hearts would have been
proud.

As it stands, the judges seem poised to impose a defence counsel on
Milosevic. Far from helping him, of course, the intention here is to
weaken his defence by requiring him to be represented by a lawyer who
knows the issues far less well than he does. Such a move would fly in the
face of the judges’ earlier rulings against this idea — and the new
presiding judge himself was, in the past, especially firm that this would be
contrary to the defendant’s rights. It would at least provide comfort to
the beleaguered prosecution. When he is not trying to get the court to
force Milosevic to give up smoking — a certain death sentence for any
Serb — Geoffrey Nice QC, the lead prosecutor, has repeatedly sought to
accomplish this switch, not least because the two-year prosecution case
has been a nearly unmitigated disaster.

Since the trial started in February 2002, the prosecution has wheeled out
more than 100 witnesses, and it has produced 600,000 pages of evidence.
Not a single person has testified that Milosevic ordered war crimes.
Whole swa ths of the indictment on Kosovo have been left
unsubstantiated, even though Milosevic’s command responsibility here is
clearest. And when the prosecution did try to substantiate its charges, the
result was often farce. Highlights include the Serbian ‘insider’ who
claimed to have worked in the presidential administration but who did not
know what floor Milosevic’s office was on; ‘Arkan’s secretary’, who
turned out to have worked only as a temp for a few months in the same
building as the notorious paramilitary; the testimony of the former federal
prime minister, Ante Markovic, dramatically rumbled by Milosevic, who
produced Markovic’s own diary for the days when he claimed to have
had meetings with him; the Kosovo Albanian peasant who said he had
never heard of the KLA even though there is a monument to that
terrorist organisation i n his own village; and the former head of the
Yugoslav secret services, Radomir Markovic, who not only claimed that
he had been tortured by the new democratic government in Belgrade t o
testify against his former boss, but who also agreed, under
cross-examination by Milosevic, that no orders had been given to expel
the Kosovo Albanians and that, on the contrary, Milosevic had instructed
the police and army to protect civilians. And these, note, were the
prosecution witnesses.

Se rious doubt has also been cast on some of the most famous atrocity
stories. Remember the refrigerator truck whose discovery in the Danube
in 1999, full of bodies, was gleefully reported as Milosevic was
transferred to The Hague in June 2001? The truck had allegedly been
retrieved from the river and then driven to the outskirts of Belgrade,
where its contents were interred in a mass grave. But cross-examination
showed that there is no proof that the bodies exhumed were the ones in
the truck, nor that any of t hem came from Kosovo. Instead, it is quite
possible that the Batajnica mass grave dated from the second world war,
while the refrigerator truck may have contained Kurds being smuggled to
Western Europe, the victims of a grisly traffic accident. The realisation is
now dawning that lies were peddled to justify the Kosovo war just as
earnestly as they were to justify the attack on Iraq.

The weakness of the prosecution case was underlined by the fact that its
triumphant conclusion in February was to broadcast a TV documentary
made several years ago. This suggests that its two-year marathon has
not served to advance knowledge of the truth beyond the tall stories
peddled by telly hacks at the time. Even professional supporters of the
ICTY now admit that the only ‘proof’ of Milosevic’s guilt has been
General Sir Rupert Smith’s stated ‘impression’ that Milosevic controlled
the Bosnian Serbs, and Paddy Ashdown’s statement that he ‘warned’
the former Yugoslav head of state that war crimes were being
committed in Kosovo. In February, the chief prosecutor herself, Carla del
Ponte, admitted that she did not have enough evidence to convict
Milosevic on the most serio us charges.

The supposedly impartial judges have been deeply complicit in this
prosecution bungling. The ICTY has long been characterised by an
u nhealthy community of interests between the judges and the
prosecutors; I have myself heard the first president of the ICTY, Judge
Antonio Cassese, boast that he encouraged the prosecutor to issue
indictments against the Bosnian Serb leaders, a statement which should
disqualify him from serving as a judge ever again. In the Milosevic trial,
the judges have admitted a tawdry parade of ‘expert witnesses’ who are
not, in fact, witnesses to anything. In Britain, the role of experts is rightly
under the spotlight after the convictions of some 250 parents found guilty
of killing their babies have been thrown into doubt precisely because they
relied on this kind of testimony; but in the ICTY yo u can be a ‘witness’
without ever having set foot in Yugoslavia.

Numerous other judicial abuses have been legitimised by the ICTY. The
use of hea rsay evidence is now so out of control that people are often
allowed to testify that they heard someone say something about someone
else. It is common for the ICTY to offer reduced sentences (five years
in one case) to men convicted of hideous crimes, mass murder for
instance, if they agree to testify against Milosevic. The use of anonymous
witnesses is now very widespread, as is the frequency of the ‘closed
sessions’: a glance at the ICTY transcripts shows pages and pages
blanked out because se nsitive issues have been discussed in court —
sensitive, that is, to the security interests of the Great Powers which
control it, the USA in first place. The ICTY’s nadir came last December,
when the former supreme commander of Nato, Wesley Clark, testified in
the Milosevic trial; the court agreed to let the Pentagon censor its
proceedings, and the transcripts were not released until Washington had
given the green light. So much for the ICTY’s transparency and
independence.

Ironicall y, Slobbo has one objective ally: the British prime minister. The
possibility is now real that a conviction of Milosevic can be secured only
on the widest possible interpretation of the doctrine of command
responsibility: for instance, that he knew about atrocities committed by
the Bosnian Serbs and did nothing to stop them. But if Milosevic can be
convicted for complicity in crimes committed by people in a foreign
country, over whom he had no formal control, how much greater is the
complicity of the British government in crimes committed by the US in
Iraq, a country with which the UK is in an official coalition? This is not
just a cheap political jibe but a serious judicial conundrum: t he UK is a
signatory to the new International Criminal Court, and so Tony Blair is
subject to the jurisdiction of the new Hague-based body whose
jurisprudence will be modelled on that of the ICTY. So if Slobbo goes
down for ten years in Scheveningen jail because of abuses committed by
his policemen, then by rights his cell-mate should, in time, be Tony.

John Laughland’s latest book is Le Tribunal pénal
international: gardien du nouvel ordre mondial, published by
François-Xavier de Guibert, Paris, 2003.

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