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TWILIGHT OF IMPUNITY

DUKE UNIVERSITY PRESS

Chapter One

This Tribunal, and this trial in particular, give the most powerful demonstration that no one is above the law or beyond the reach of international justice. CARLA DEL PONTE, OPENING STATEMENT, 12 FEBRUARY 2002

I challenge the very legality of this Tribunal.... SLOBODAN MILOSEVIC, OPENING STATEMENT, 14 FEBRUARY 2002

Day 1: Prosecutor v. Slobodan Milosevic

The building housing the tribunal was ugly and forbidding. A rambling concrete structure, converted from an insurance building into three courtrooms and countless offices, it was surrounded by high fences and rolling barbed wire, with guards and metal detectors at all entrances. Picture ID was required for visitors, badges for employees and press. It more resembled a prison than one of the highest courts in the world where a historic trial was about to begin.

On day one of Slobodan Milosevic's trial, media from all over the world packed the courtroom and overflow areas, a sight rarely repeated during the following four years. Television cameras were set up on the lawn for post-trial news commentary. A wall of bulletproof glass separated the gallery from a technologically advanced courtroom with computer monitors, microphones, translating equipment, and video cameras, evoking comparisons to the command center of the Starship Enterprise.

Milosevic sat on the left side of the courtroom, flanked by armed guards in blue uniforms, wearing bulky bulletproof vests under their shirts. Otherwise he was alone, a symbolic though false projection to the world, since he was assisted by a defense team in Belgrade, onsite legal assistants, and quite probably members of the Serbian State Security Service (SDB). The accused wore a conservative suit, blue striped tie, and blue shirt. (For his opening statement two days later, he changed to a tie in the colors of the Serbian flag: red, blue, and white stripes.) He looked relaxed despite the imposing setting and the reason that brought him there. Short and stocky, with a jowly face and white hair brushed back from a receding hairline, he looked like a caricature of a communist apparatchik.

Seated somewhat ambivalently in front of and to Milosevic's right were the three amici curiae (friends of the court) appointed by the trial chamber to assist in assuring that all legal arguments and defenses available to Milosevic were raised, in light of his self-representation. All highly respected lawyers, the three-Branislav Tapuskovic from Belgrade, Queens Council Steven Kay from Britain, and the Dutchman Michail Wladimiroff-would see their roles change dramatically in the coming months. Kay's adherence to proper English barrister attire (a wig of rolled white curls) and his trademark wire-rimmed eyeglasses resting on the tip of his nose added to the historic sense of the occasion.

At 9:30 a.m. a staff member in a long, black robe announced the judges in the two official UN languages, French and English. "All Rise. Vouillez-vous levez. The International Criminal Tribunal for the Former Yugoslavia is now in session. Le Pénal International pour l'ex-Yugoslavie est ouvert." Simultaneous translators inside glass booths translated the opening words into Albanian and B/C/S, the latter the result of nationalism and a war that transformed one language into three ostensibly new ones. Patrick Robinson from Jamaica led the procession of three judges wearing black robes with distinguishing scarlet drapes. His patrician demeanor reflected a long diplomatic career. Milosevic considered him a sympathetic ally until Robinson became presiding judge halfway through the trial. He was followed by the presiding judge, Richard May of Great Britain, a highly respected jurist who had once unsuccessfully challenged Margaret Thatcher for a seat in Parliament. Known for his mastery of evidence and legal procedure, Judge May hid a kind heart behind an exterior gruffness. Judge O-Gon Kwon, a Harvard Law graduate from South Korea, entered last. The newest of the three judges to the ICTY, Judge Kwon became known for his photographic memory and attention to detail. His calm demeanor would prove useful as the stresses of a long and contentious trial played out. The judges exchanged bows with those assembled and took their seats on the raised dais. Judge May directed the registrar to call the case.

All eyes were on Milosevic-butcher of the Balkans or Serbian martyr, depending on one's point of view but inarguably the central figure in Yugoslavia's demise and descent into ten years of war. Though defiant, he stood before the bar of international justice. No longer in control, he was now subject to the commands of others.

The first sitting head of state called to answer for grave violations of international law before an international court, he was outraged at being selected for this ignominious role. He felt betrayed by his former international interlocutors, who had once regarded him as the key to peace and affected a camaraderie over shared glasses of whiskey and Viljamovka (his favorite pear brandy). Considering all the heads of state who had used criminal means to secure power and gone unpunished, his outrage was understandable. Yet an emerging international system of accountability must start somewhere. Milosevic was caught between a fading realpolitik and its policy of impunity and a growing call for international justice as essential to lasting peace.

The ICTY chief prosecutor, Carla Del Ponte, rose to address the trial chamber, though she would not try the case herself. Del Ponte, fifty-five years old, a tough former Swiss prosecutor who made her reputation by prosecuting the mafia, had a diminutive stature that belied her courage and tenacity. Her consistent public pressure on politicians to arrest those she had indicted for war crimes hurt her popularity. But as she said on more than one occasion, it was not her job to be liked.

Madame Prosecutor introduced the attorneys with major responsibility for the trial: the lead prosecutor, Geoffrey Nice, from Great Britain; Dermot Groome of the United States, who would lead the Bosnia part of the case; Dirk Ryneveld of Canada, responsible for Kosova; and Hildegard Uertz-Retzlaff of Germany, responsible for Croatia. Other assistant prosecutors helped make up the team. Del Ponte, Nice, and Ryneveld addressed the court, followed by the accused.

Standing at counsel table, Del Ponte, set the scene. "The law is not a mere theory or an abstract concept. It is a living instrument that must protect our values and regulate civilised society. And for that we must be able to enforce the law when it is broken. This Tribunal, and this trial in particular, give the most powerful demonstration that no one is above the law or beyond the reach of international justice.... As Prosecutor, I bring the accused Milosevic before you to face the charges against him. I do so on behalf of the international community and in the name of all the member states of the United Nations, including the states of the former Yugoslavia."

Del Ponte emphasized that Milosevic as an individual was on trial, not the Serbian people. The tribunal's purpose was to stop the cycle of revenge based on collective guilt, at the heart of which lay the destructive nationalism that fueled the Balkan wars of the 1990s. Nevertheless Milosevic, by insisting that he was defending the Serbian people, would attempt to put them on trial.

Del Ponte challenged the accused's declaration at his initial appearance seven months before. "This is a criminal trial. It is unfortunate that the accused has attempted to use his appearances before this Chamber to make interventions of a political nature. I can assure the Chamber that in the case before us the Prosecution will not allow itself to be drawn into any such exchanges. This is a Trial Chamber, not a Debating Chamber." That the prosecutor eschewed a debate did not stop Milosevic from pursuing his agenda. While the court would try to limit his political polemics, it was far from successful.

The prosecutor offered the court her view of Milosevic's motivation for the crimes with which he was charged:

An excellent tactician, a mediocre strategist, Milosevic did nothing but pursue his ambition at the price of unspeakable suffering inflicted on those who opposed him or who represented a threat for his personal strategy of power. Everything, Your Honours, everything with the accused Milosevic was an instrument in the service of his quest for power. One must not seek ideals underlying the acts of the accused. Beyond the nationalist pretext and the horror of ethnic cleansing, behind the grandiloquent rhetoric and the hackneyed phrases he used, the search for power is what motivated Slobodan Milosevic. These were not his personal convictions, even less patriotism or honour or racism or xenophobia which inspired the accused but, rather, the quest for power and personal power at that.

Del Ponte turned to the victims, whom she did not literally represent but whose fate informed the indictment. She cast her net broadly.

The trial which commences today will evoke the tragic fate of thousands of Milosevic's Croatian, Bosnian, Albanian victims. To read about the sufferings endured by these countless victims and survivors is unbearable. Yet the accused, Milosevic, also caused other victims. And now, Your Honours, I am thinking about the Serbs. The Serbian refugees from Croatia, from Bosnia, from Kosovo abused by Milosevic, whose fears were fed and amplified and manipulated to serve Milosevic's criminal plans. Many paid with their lives; most lost their homes and their futures. These men and women must rightly be counted among Milosevic's victims, just as the citizens of the Federal Republic of Yugoslavia, who now must reconstruct the exsanguinated country which Milosevic, the accused, bequeathed to them.

If Del Ponte intended to win over a skeptical Serb audience, she failed. Many of Milosevic's Serb victims directed anger at Del Ponte, not at the architect of their misery.

Finally, she emphasized the trial's historic nature, reminding the court and the listening public that the trial was of one man only and could not establish a complete picture of events or responsibility for them. That was left to a broader investigation of which the tribunal's record formed but a part:

The history of the disintegration of the former Yugoslavia and the fratricidal conflicts of another age which it brought about is a complex process which must be written by many people. This Tribunal will write only one chapter, the most bloody one, the most heartbreaking one as well: the chapter of individual responsibility of the perpetrators of serious violations of international humanitarian law.... The apparently inevitable concatenation of fear and hatred, political manipulation, the sinister role of some of the media but also the heroism of the resistance and those who opposed him throughout the former Yugoslavia, the survival of dignity and civil spirit and humanity, all of these are mechanisms which must be analysed, dissected, and explained because it is imperative to respond to the victims' demand for truth, "victims" in the broadest sense of that term, and to reduce the risks of seeing this played out again in another place in the world and, in particular, in the Balkans. But here, more modestly, it is Slobodan Milosevic's personal responsibility which the Prosecution intends to demonstrate for the crimes ascribed to him, nothing but that, but all of that.

Prosecution overview

The lead prosecutor, Geoffrey Nice, rose to present an overview of the prosecution's case. Evidencing an old-world courtesy, Nice, a highly accomplished London barrister, was well known for his eccentric taste in clothing. Though a black robe covered suspenders and vividly patterned shirts, his colorful and whimsical socks peeked from below. In the overflow pressroom I was unable to see what he had chosen for the momentous first day.

Nice drew the court's attention to the heart of the case: the grievous harm done to millions of people. He chose three "representative" stories. From Croatia, he told the court, they would hear from a fifty-eight-year-old man, one of six survivors of the Ovcara Massacre that followed the Yugoslav Army's destruction of Vukovar. Approximately 260 men and one woman were taken prisoner and slaughtered. From Bosnia they would hear of a young woman burned alive with her newborn infant and forty-five family members in a house that paramilitaries had doused with petrol and set ablaze. And for Kosova, Nice related the story of eight young women repeatedly raped, then thrown into a well where their bodies were later discovered.

Nice assured the court that the prosecution would keep such emotionally charged evidence to a minimum. The only forensic purpose, he said, was to answer this question: "Did the Accused know what his policies had wrought?" Nice answered, "Of course he did. Not only would matters have been reported to him, but in these days when the press, radio, and television bring wars to our homes as they occur, he cannot not have known. And therefore the question is if the Chamber is, in due course, satisfied that he lay behind what was happening, why did he continue; why did he not stop these things that were occurring?"

It was Nice's task to put the crimes in context. While Milosevic would locate seminal events in the fourteenth century, Nice focused the court's attention on the twentieth. He began in 1974, when to disperse power more broadly Yugoslavia's longtime leader Josip Broz ("Tito") decentralized the constitution, one effect of which was to broaden the autonomy within Serbia of Kosova (and Vojvodina, a province in northern Serbia). The provinces gained power over their own courts, assembly, police, and educational systems. Kosovo Serbs, 23 percent of the population from 1948 to 1961, decreasing to less than 10 percent in 1991, became increasingly apprehensive and complained of discrimination. After Tito's death in 1980 his "brotherhood and unity" mandate for many nationalities living peacefully together began to show cracks. In Kosova, Albanians demonstrated for republic status within Yugoslavia, equal with that of Serbia, Croatia, Slovenia, Bosnia, Macedonia, and Montenegro. Demonstrators were killed and jailed. Serbs also pressed for their national interests. Intellectuals in the Serbian Academy of Arts and Sciences (SANU) drafted a highly nationalistic "memorandum," leaked to the press in 1986. Nice read from it: "The physical, political, legal, and cultural genocide against the Serb population of Kosovo and Metohija is the serious, serious defeat of Serbia," and "Except in the wartime period, never have the Serbs of Croatia been so threatened as today."

Milosevic maneuvered his rise to power by capturing the leadership of the Serbian Communist Party, while at the same time declaring himself the defender of Serb nationalism. As communism began its demise throughout Eastern Europe, Milosevic was well placed to establish his own party, the Socialist Party of Serbia (SPS), using it as he had the CP to gain power over republic and federal institutions, including the army, by the power of patronage.

The elections of 1990 brought nationalists to power across Yugoslavia, except in Macedonia where former Communists (Party of Democratic Change) joined a moderate Albanian party (Party of Democratic Prosperity) to form a coalition. The rise of Croat nationalism under Franjo Tudjman fed Croatian Serb fears, as symbols of the murderous Croatian Ustasha from the Second World War once again appeared. When Tudjman and his nationalist party came to power in Croatia, he changed the Croatian constitution to reduce Serbs from a constituent people, equal to Croats, to a minority with fewer rights, providing Milosevic with ammunition to fuel the growing fire of Serb nationalism.

(Continues...)

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Excerpted from TWILIGHT OF IMPUNITY by JUDITH ARMATTA Copyright © 2010 by Duke University Press. Excerpted by permission.
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