CHRISTIAN AXBOE NIELSEN
Aarhus University*
The ICTY has amassed an enormous amount of evidence, and its judgments offer detailed reconstructions of events that are tantamount to historical narratives. Dissection of these narratives affords an opportunity to probe the nexus of law and history, a burgeoning field of scholarly inquiry. Historians shared the general sense of disappointment at the untimely end of the Milošević trial, yet in the absence of a judgment, the Tribunal’s earlier Rule 98bis Decision provides the best indications of the judges’ potential views. Most important, it found that the Prosecution had adduced “sufficient evidence to support each count challenged in the three indictments.” This chapter subjects the Decision to the kind of methodology historians apply to final judgments in other cases to see whether one can obtain a useable “first draft” of history by attending to their interlocking narratives. Any attempt to derive historical claims from the work of the Tribunal confronts conceptual and policy obstacles. Observers have criticized the Prosecution for telling a story of the war rather than conducting an expedient trial, yet Milošević too viewed the courtroom as a theater of history and actively attempted to propound his version of recent Yugoslav history and his role. An historical interpretation of the Tribunal’s work is unavoidable.
The ICTY has amassed an enormous amount of documentary and electronic evidence related to the dissolution of Yugoslavia and the conflicts that ensued. Final judgments have been rendered in over 85 cases, spanning a wide array of defendants and crime bases. These often enormous judgments offer detailed reconstructions of events that in their factual content and scope are tantamount to historical narratives. Dissection of these narratives produced in the laboratory of international criminal justice affords an opportunity to probe the nexus of law and history, a burgeoning field of scholarly inquiry.1
Regarding the Milošević trial, historians shared the general sense of disappointment at its untimely end. Despite the advanced stage of the proceedings, the Trial Chamber could of course issue no judgment after Milošević died. Given the importance and scope of Milošević’s actions during the collapse of Yugoslavia, any attempt to write the history of this period must come to terms with his crucial contribution. Yet historians were, it seemed, deprived of the informed evaluation of his role a judgment would have offered.
However, almost two years earlier, in June 2004, the Chamber had issued an important ruling dismissing a motion for acquittal brought by the Amici Curiae.2 As Waters discusses in his chapter, this Rule 98bis Decision provided preliminary indications of the Trial Chamber’s potential final findings, and far from being perfunctory, the Decision was a lengthy and meticulous document. Most important, it found that the Prosecution had adduced “sufficient evidence to support each count challenged in the three Indictments, but there is no or insufficient evidence to support certain allegations relevant to some of the charges in the Indictments.”3 Milošević therefore had to defend himself on all counts.
Writing in 2003, Michael Scharf portentously pronounced that “the one thing the Tribunal wants to avoid more than anything else is having Milošević expire during the trial. His death would literally erase history from being recorded[.]”4 Scharf’s hyperbolic conclusion elides the enormous trove of documentation amassed by the ICTY as a result of the proceedings against Milošević—by November 2005, several months before his death, over 1.2 million pages had been disclosed to the Defense5—as well as the Decision’s role in interpreting that documentation. True, the arguments contained in the Decision fall considerably short of providing a judicial history of the conflicts in Croatia, Bosnia, and Kosovo. Nevertheless, when analyzed in conjunction with other ICTY judgments, particularly those sections that address the role of Milošević, a reasonable first draft of his leadership role in the armed conflicts in Croatia, Bosnia and, in particular, Kosovo begins to emerge. As a recent summary of the dissolution of Yugoslavia concluded, “the historical record shows that it was Milošević and no one else whose actions pushed the country to the brink.”6
The use of the term “reasonable” is deliberate, and aligns with what the Decision itself says about the conclusions a court might reasonably draw from the evidence in the Milošević trial. Drawing on a previous ruling by the Appeals Chamber, the Trial Chamber noted that “the test for determining whether ‘the evidence is sufficient to sustain a conviction’ is ‘whether there is evidence (if accepted) upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.’”7 As Waters notes, this is “an extremely low burden [.]”* It in effect assigns the highest probative value to the evidence led by the Prosecution, but the Trial Chamber also insists only that a conviction could be rendered by a tribunal of fact, not that it will be rendered. Given the absence of judgment in Milošević, this requires examination of other related cases that did reach final adjudication, in order to draw the full interpretative value from the Decision’s reading of the evidence.
This chapter begins with a brief introduction to research on the intersection of international criminal justice and history. It briefly details the methodology used to dissect ICTY judgments, and applies an abbreviated form of it to the Decision. It then combines this analysis with findings in other ICTY cases that intersect with Milošević to see how much history can be salvaged from the trial. Do findings in other cases tend to confirm the tentative narrative set out in the Decision, or do they indicate a different version of events and a different role for Milošević? It is important to stress that this is not an exercise in guessing whether the Trial Chamber would have found Milošević guilty; this chapter cannot avoid implicitly addressing that question, but the focus is on the trial’s legacy for the historiography of the Yugoslav conflicts.
Underlying this inquiry is the question of whether an international criminal courtroom is an appropriate place for writing history. Internal and external critics of the Prosecution’s decision to try Milošević simultaneously on three different and expansive indictments have disparaged the Prosecution for wanting to tell a story rather than conduct a fair and expedient trial.8 At the same time of course, Milošević himself, while ostensibly dismissing the Tribunal as a travesty and a farce, implicitly cooperated in the conduct of the proceedings; notwithstanding allegations of obstructionism, he certainly viewed the courtroom as a theater of history and actively attempted to use it to propound his version of recent Yugoslav history and his role in it, rather than narrowly defend himself against the Prosecution’s charges.* So both the Prosecution and Milošević tacitly used (or abused) the ICTY for this purpose during the Milošević trial: As Boas has shown elsewhere, the Trial and Appeals Chambers were complicit with both of them, allowing the Prosecution’s request for a joinder of three separate indictments, and refusing to set tougher limits on the behavior of the Accused.9 This made Milošević into perhaps the biggest test since Nuremberg of whether history could be written through a trial. In order to understand how this occurred, it is necessary to situate the trial in the context of the ongoing debate about the place of history in the courtroom.
There is a growing field of scholarly inquiry that examines the way in which international criminal courts produce and interact with history. Such interaction occurs in at least four ways. First, as institutions that investigate, indict, and prosecute prominent military and civilian leadership figures, courts themselves become historical actors that are “very much aware of their historical importance.”10 Second, the very act of investigating and prosecuting necessitates the accumulation of vast quantities of documentation, which transforms these institutions into repositories—archives—for some of the most salient documentation related to major historical events.11 Third, the prosecution of alleged war criminals puts these documents on public display, along with witnesses, particularly victims and insiders—whose testimony in court produces a sort of oral history—which increases public knowledge and understanding of the conflict.* Finally, in passing judgement, courts usually provide a well-reasoned verdict assessing the legal responsibility of the accused for the commission of crimes. In doing so, they are inevitably assessing at least part of the history of the conflict, and issuing rulings that help define the nature of the crimes committed and the identities of the victims and the perpetrators.
When examining the intersection of international criminal justice and history, three schools of thought can be discerned. First, there are those who feel that international criminal justice should focus as narrowly as possible on ascertaining the level of criminal responsibility, both during the investigative and trial phases of the case. This view, which can be grounded in legal, financial, and philosophical arguments, favors the minimalistic and purely utilitarian collection of evidence, combined with short, sharply focused trials. In the aftermath of the Milošević trial, this view has become more prevalent, as one can see a general backlash in the ICL community against what was perceived to be a bloated trial.12 Thus, the ICC has to date attempted with limited success to avoid sweeping indictments that would necessitate long trials and detailed historical contextualization†—a view commonly thought to have been informed in part by the experience of Milošević.
In the middle, a second school holds that history cannot be excluded from investigation or the courtroom, not least because judges must understand the historical context of the crimes. This view recognizes that war crimes are generally committed as part of larger political and military programs: a concentration camp is not a simple case of assault, or even a typical homicide case in a domestic jurisdiction. This point was made by Justice Jackson about Nuremberg’s unprecedented sweep: “Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a third of a continent and involving a score of nations, countless individuals, and innumerable events.”13 The totality, magnitude, and sheer scope of the crimes committed lead to what has been called the “exponential character” of war crimes, in which a “terrible reality cannot be explained simply as a composite of individual crimes committed for individual reasons.”14
Finally, a third school holds that international criminal trials will produce definitive histories of conflicts. This view can be traced to the claims of some participants in the Nuremberg Trial. Thus Robert Kempner, a junior U.S. prosecutor, referred to the International Military Tribunal as “the greatest history seminar ever held in the history of the world[,]” and Sir Hartley Shawcross, the chief British prosecutor, held Nuremberg to be an “authoritative and impartial record to which future historians may turn for truth.”* This school has perhaps become somewhat less common among academic observers in the last decade, though versions of it persist.
Clearly, representatives of the formerly warring parties in Croatia, Bosnia, Serbia, and Kosovo continue to dispute and on occasion reject the factual findings of the Tribunal,† and recent cases in which Holocaust deniers have been prosecuted have evinced the difficulty of enforcing “judicial undeniability.”15 Even within the ICL mainstream, however, claims appear that courts produce an authoritative record or establish undeniable facts that in turn can be deployed to combat denial, and courts themselves continue to evince an attraction to this expansive interpretation of their role. Richard Goldstone, the first chief prosecutor of the ICTY, once stated that the Tribunal aimed to “create an internationally public record of what has occurred in the former Yugoslavia.”16 The ICTY has trumpeted its creation of an “indisputable historical record[,]”‡ and the ICTR has claimed that the work of that institution has not only provided proof of the commission of genocide in Rwanda, but by “unanimously and decisively confirm[ing] the occurrence of genocide in Rwanda … the fact of the Rwandan genocide is a part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge.’”§
In her opening statement in Milošević, Chief Prosecutor Del Ponte presented her own historical ambitions. Del Ponte echoed Justice Jackson in remarking that “I recognize that this trial will make history, and we would do well to approach our task in the light of history.”17 She went on to state that “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 [.]”18 She then handed off to Prosecutor Geoffrey Nice, who elaborated on Del Ponte’s theme in a way that showed how all three of these schools’ understandings of how history and courts interact can be represented in a single trial:
This trial, as, again, the Prosecutor has correctly explained, will not be making findings as to history. Matters of history always leave scope for argument, for doubt between historians. But history, even distant history sometimes available to this Court through the witnesses, will have a relevance from time to time in showing what the accused thought, what those identified in indictments as his co-perpetrators thought, what his compliant supporters thought, and what was available in history to fire up the emotions, particularly nationalist emotions, however little this particular accused might personally and genuinely have held those nationalist views.19
It is important to distinguish, however, between the use and the production of history in the courtroom.* As Nice’s statement shows, both occurred in Milošević. Although the protracted course of Milošević illustrates that it can be difficult to untangle the two, the present study concentrates on the production of history. A public record is not the same as a history, but certainly provides a substantial part of the raw material for the writing of history.
We can assess the production of history in the Milošević courtroom through a very simple methodology that parses ICTY trial judgments until they are reduced to a collection of positivistic “historical facts.” These statements satisfy the following questions:
1. Does the statement purport to establish that an action, event, or process did or did not occur at a particular moment or over a given period of time?
2. Does the statement represent the trial chamber’s final decision on that particular matter?
Using these questions, the judgment is stripped of its jurisprudence and legal considerations. What remains has been memorably described in the introduction to Justiz und NS-Verbrechen, the mammoth officially published volumes of judgments on Nazi war crimes, as “die durch die Strafverfahren zutage geförderten historischen Erkenntnisse” (the historical findings brought to light through criminal proceedings).20
In the absence of a judgment in Milošević, the Rule 98bis Decision can be used, supplemented by a comparison with relevant facts garnered from judgments in other cases where conclusions were rendered on the role of Milošević. This permits cautious and tentative conclusions about the accuracy of the facts in the Decision. Moreover, we are not limited to the Decision: Facts relevant to Milošević can also be extracted from judgments in other cases that do represent the end products of full trials; these can then be compared with the Decision’s factual account. None of this surmounts the heuristic difficulties or imperfections of the Decision that concern Waters—only a completed trial could have done that. But it is the methodological conceit of this article that the judgments of other relevant cases at the Tribunal can be used as a tentative check on the Decision and its very low fact-finding threshold.
At the same time, while engaging in the kind of salvage exercise proposed by the title of this chapter, we cannot lose sight of the very different methods and goals of the historian and the courtroom judge or lawyer. Often the historian and the lawyer will agree on a fact—for example the death of a person—but the lawyer and the court aim to achieve a legal characterization of this fact. Was it a natural death, a homicide, or perhaps a killing conducted with genocidal intent? Historians are, of course, also interested in classifying events—witness the often polemical debates about whether various mass killings in earlier history qualify as genocide or not—but unlike lawyers, they are not bound to view facts through a legal filter. For precisely these reasons, the Nuremberg Trials resulted in “tortured” history.21 As Lawrence Douglas writes, “[a]t times, the legal lens through which evidence of atrocity was filtered resulted in substantial distortions of the historical record. More often, the legal structure fashioned at Nuremberg failed in a more complex fashion to represent and make sense of traumatic history.”22 As we will see, some of the same problems remained decades later during the Milošević trial.
The Motion for Judgment of Acquittal that the Trial Chamber considered and ultimately rejected was filed not by Slobodan Milošević; consistent with his refusal to recognize the Tribunal’s legitimacy, he did not make a motion to dismiss the Prosecution case. So, on 3 March 2004, pursuant to Rule 98bis, the Amici filed a motion asking the Trial Chamber to acquit on all counts.23 According to the Trial Chamber’s summary of the motion, the Amici argued, inter alia, that “there is no evidence that the Accused planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a genocide, any genocidal acts, or that he was complicit in such.”24 The Amici also asserted that the Prosecution had failed to show the existence of an armed conflict in Kosovo or to prove that the conflict in Croatia was of an international character25—claims which, if upheld, would have required several counts to be dropped for lack of jurisdiction.
The Chamber issued its Decision in June. At 146 pages, the Decision was considerably longer than previous Rule 98bis decisions by other trial chambers. According to Boas, in his book on the trial
the reason for such an extensive judgment in Milošević probably lay in the fact that there were a large number of “crime base” allegations in the Croatia and—particularly—Bosnia indictments for which acquittals were entered. There were important legal questions raised concerning the existence of an armed conflict in Kosovo, the legal tests for deportation and forcible transfer and the existence of Statehood for Croatia, which impacted on the internationality of the armed conflict and there-fore the application of grave breaches of the Geneva Conventions to crimes charged against Milošević in the Croatia indictment.26
Although dismissing numerous individual allegations cited in the indictment due to lack of evidence, the Chamber did not remove any count from the indictment.
A distinction must be drawn between the Chamber’s findings in its Decision and the hypothetical findings the same Chamber would have issued had the case been brought to final judgment.* Relying on a ruling by the Appeals Chamber in Jelisić, the judges in Milošević note that their findings conform to a test as to “whether there is evidence (if accepted) upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question…; thus the test is not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the Prosecution evidence if accepted, but whether it could.”27 It is certainly possible that a chamber could deny a Rule 98bis motion and then subsequently acquit; this occurred in Krajišnik on the genocide count, for example.28 This proves, as the Trial Chamber in Milošević observes, that the denial of a rule 98bis motion signifies that the Chamber could convict, not that it will convict. This legal test can be confusing and has provoked criticism.†
The Trial Chamber’s reasoning in the Decision is based on a review of the evidence led by the Prosecution. Logically, it should also factor in points made successfully by Milošević on cross-examination or by the Amici during the Prosecution phase. The Decision does not appear to do this, in that it takes Prosecution evidence as its highest probative value and assumes its credibility; however, as noted by Human Rights Watch, “the fact that Milošević had the opportunity to test the prosecutor’s evidence in cross-examination enhances its value as a historical record.”29
The substantive portion of the Decision examines the challenges to the three indictments in the order that evidence was led at trial. This section briefly reviews the major challenges to those indictments raised in the Amici’s Motion and the findings of the Trial Chamber in its Decision. (It does not review portions of the Decision that examine and dismiss individual alleged criminal incidents in the indictments.)
Beginning with the Kosovo indictment, the Chamber scrutinized the Amici’s claim that there was no armed conflict in Kosovo before 24 March 1999, the date when NATO began bombing the FRY.
The Amici argued that the KLA was not sufficiently organized to have constituted an armed group in the sense required to claim the existence of an armed conflict.30 This is an important question for determining the jurisdiction of the Tribunal, as without an armed conflict some of the Tribunal’s heads of jurisdiction, such as war crimes, could not be invoked, and counts associated with them would have to be dropped.31 The Amici’s claim was consistent with Milošević’s assertion that the KLA was not an armed group in the legal sense, but rather a group of terrorists or bandits not entitled to the same protection under international law.* By contrast, the Trial Chamber found that there was a “sufficient body of evidence pointing to the KLA being an organized military force, with an official joint command structure, headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.”32 The judges also found that the fighting between the KLA and Serbian forces was of sufficient intensity to meet the standard for an armed conflict—and indicated that not only was the evidence sufficient to allow a reasonable court to convict, but that they themselves found some of the evidence persuasive: “Much of the evidence cited by the Amici Curiae, in the Trial Chamber’s view, actually substantiates the case for the Prosecution that there was an armed conflict during the relevant times.”33 In stating this, the Trial Chamber arguably went well beyond the ambit of the legal exercise prescribed in Rule 98bis, but that does not affect its value as an indication of how the judges viewed the evidence: The Chamber dismissed the challenge to the Kosovo indictment, preserving all counts.34
The main challenge by the Amici to the Croatia indictment focused on the question of when Croatia became a state and the consequent existence of an international armed conflict for the period of the crimes alleged—again, a threshold question for invoking parts of the Tribunal’s jurisdiction.35 Whereas the Prosecution asserted that Croatia had been independent since 8 October 1991, the Amici argued that Croatia had become a state no earlier than 15 January 1992, and possibly as late as 22 May 1992.36
In examining this challenge to the Croatia indictment, the Trial Chamber reviewed the relevant international legal jurisprudence and referred to the work of the Badinter Commission, the body appointed by the European Communities that attempted to arbitrate the breakup of Yugoslavia. The Trial Chamber broke down customary definitions of international statehood into constituent parts and examined whether Croatia fulfilled these criteria, and “conclude[d] that there is sufficient evidence that Croatia was a state by 8 October 1991 for the purposes of Rule 98bis[.]”37
From the point of view of history, the parts of the Decision dealing with Kosovo and Croatia speak in detail only to the larger questions of whether (international) armed conflict existed. Little or no information is provided on the role of Milošević. At the level of the crime base, readers of the Decision encounter only an opaque list of alleged crime scenes in which the Trial Chamber finds that enough evidence has been adduced about the commission of crimes to warrant an answer from the defense.
In challenging the Bosnia indictment, the Amici disputed the charges of genocide and complicity in genocide. This was the most explosive and heavily debated charge in the three indictments. As coverage of the Milošević trial dominated the media’s coverage of the ICTY, so the charge of genocide dominated the public and victim communities’ understanding of the trial, and through it, of the Tribunal as a whole. Unfortunately, this has resulted in an extremely defective understanding of the Tribunal’s work. Such a perspective devalues all convictions on charges other than genocide, by suggesting that the Prosecution (and, by implication, the Tribunal) must achieve a conviction on genocide in order to “succeed.”* Inherent in the criticism was also the erroneous notion that if Milošević were not convicted for genocide in Bosnia, no one else would be. Yet, since Milošević, there have been convictions for genocide at Srebrenica, and the Tribunal’s rulings and documentation tend rather to suggest that Milošević and the leadership of Serbia, although content to fund the Bosnian Serbs’ war effort and defend them against international criticism, did not share the genocidal intent of some Bosnian Serb actors.†
In its case, the Prosecution had attempted to show that “the Accused participated in a joint criminal enterprise, the objective of which was the destruction of the Bosnian Muslim group in that part of the territory of Bosnia and Herzegovina intended to be included in the Serbian state.”38 By contrast, the Amici argued that the Prosecution had not led any evidence demonstrating a connection between Milošević and the alleged crimes, and that Milošević did not possess the dolus specialis for genocide because he had not done or said anything that “could be interpreted as declarations of an intention to commit genocide.”39 In addition to a number of other legal points, the Amici also disputed whether genocide had, in fact, occurred during the conflict in Bosnia.40
The Trial Chamber reviewed the Prosecution’s evidence on genocide in eight Bosnian municipalities (Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kotor Varoš, Ključ, and Bosanski Novi).‡ The Chamber then considered whether Milošević intended to commit genocide, and whether he participated in a genocidal JCE. Finally, the Chamber also considered several questions that related to the connection between genocide charges and Milošević’s mental state, asking whether Milošević (1) even if lacking dolus specialis, could still have reasonably foreseen that the other criminal acts in which the JCE was engaged could have escalated to a genocidal level; (2) aided or abetted genocidal acts; or (3) knew or had reason to know that his subordinates were about to commit genocide, or had committed genocide, and failed to punish them.41
After proceeding through the eight municipalities and reviewing the evidence, “a Trial Chamber could be satisfied beyond a reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosniak population, and that genocide was in fact committed in Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Ključ, and Bosanski Novi.”42 No evidence of genocide was found in Kotor Varoš.43
Having established the possibility that a reasonable trial chamber could find the existence of a JCE with the intent of committing genocide, the Chamber assessed Milošević’s role in the JCE and whether he shared the intent of the other participants. The judges first examined evidence suggesting that Milošević was the “leader of all Serbs[,]” consisting of statements by other Serb leaders such as Milan Babić of the RSK and by foreign diplomats who had met and negotiated with Milošević, as well as Milošević’s own statements about the Serbian nation.44 The judges then studied the relationship of Milošević with the military and civilian authorities of the Bosnian Serbs, finding it reasonably plausible that he held “profound influence” over them.45 More precisely, the Trial Chamber pointed to Prosecution evidence of connections between the VRS and the VJ, including the existence of the 30th Personnel Center, which had served as a cover for the VJ’s continued funding of the VRS and the payment of its officers’ salaries.46 In sum, the Decision found it reasonably plausible that “the salaries and pensions of VRS members came from Belgrade; the JNA provided the VRS continual support in terms of equipment, ammunition, and manpower and occasionally participated in armed operations during the war.”47
The Decision portrayed Milošević as being consistently well-informed about the military and political situation in Bosnia: It cited evidence suggesting that Milošević not only kept abreast of the situation but was consulted by the Bosnian Serb military and political leadership, and that his counsel was taken by them as being authoritative.48 Some evidence was noted that alluded to Milošević’s possible advance knowledge of the intentions of General Ratko Mladić regarding the civilian population of the Srebrenica enclave in July 1995.49 Finally, Milošević’s extensive involvement in the negotiations leading to the Dayton Accords—including his exercise of authority on behalf of the Bosnian Serbs, his ability to accept provisions which the Bosnian Serbs themselves regarded as unacceptable and to impose such conditions on them—was taken as reasonably plausible evidence of his superior leadership role vis-à-vis the Bosnian Serbs.50
The Chamber therefore concluded that “a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in the joint criminal enterprise, found by the Trial Chamber … to include the Bosnian Serb leadership, and that he shared with its participants the aim and intention to destroy a part of the Bosnian Muslims as a group, Judge Kwon dissenting.”* Further, “a Trial Chamber could infer that he not only knew of the genocidal plan of the joint criminal enterprise, but also that he shared with its members the intent to destroy a part of the Bosnian Muslims as a group in that part of the territory of Bosnia and Herzegovina which it was planned to include in the Serbian state”51—that is, that Milošević may have had the special intent required to sustain a conviction for genocide.† Nevertheless, Judge Kwon’s dissenting opinion meant that “a considerable question mark was left hanging over this crucial and emotive aspect of the prosecution’s case in respect of Bosnia.”52
Given that the Prosecution had proffered little or no evidence showing that Milošević personally ordered genocide, the Chamber considered whether Milošević should have foreseen that the criminal conduct of the JCE of which he was allegedly a member would reasonably lead to genocide, and thus he could be held responsible for acts of genocide committed by others. The Amici argued that the particular mens rea required for genocide was incompatible with the notion of a JCE,53 because although a JCE by its nature imputes responsibility for acts by one individual to another, genocide requires one to specially intend the destruction of a group, not merely be aware of it. Citing the Appeals Chambers in Tadić and Brđanin, the Trial Chamber argued that one of the three categories of JCE allowed for individual criminal liability in cases in which “the crime charged was a natural and foreseeable consequence of the execution of that enterprise and that the Accused was aware that such crime was a possible consequence of the execution and that, with that awareness, he participated in that enterprise.”54 In their reasoning, Judges May and Robinson came very close to establishing an authoritative legal test, as opposed to merely conjecturing what a reasonable trial chamber could plausibly conclude. This interpretation of criminal liability, as well as the entire notion of JCE, is hotly debated in legal academic circles and among practitioners.‡
In sum, the Chamber’s Rule 98bis Decision found that Milošević had a case to answer on all three indictments, and all counts. From the perspective of establishing a historical record, this did not necessarily amount to very much at all, given the extraordinarily low burden of proof, but this is not our only source: The next section will examine the conclusions in final judgments from other trials that dealt with evidence related to the role of Milošević. Did these judgments tend to confirm the provisional conclusions of the Decision?
Milošević naturally figured prominently in other cases owing to the broad de jure and de facto powers he exercised during the conflicts in the former Yugoslavia, and to the Prosecution’s extensive reliance on the theory of JCE. In his own trial, Milošević was identified as a member of a vast JCE that included a large number of separately indicted individuals: Milan Milutinović, Nikola Šainović, Dragoljub Ojdanić, and Vlajko Stojiljković for the Kosovo indictment;* Radovan Karadžić, Momčilo Krajišnik, Biljana Plavšić, Ratko Mladić, Jovica Stanišić, Franko Simatović, and Vojislav Šešelj for the Bosnia indictment; and Milan Babić, Milan Martić, and Goran Hadžić, as well as Simatović, Stanišić, and Šešelj again, for the Croatia indictment. These individuals were tried separately under JCE theories that in turn included similar subsets of Milošević’s JCE. In Krajišnik’s trial, for example, the Prosecution alleged that he was “a co-perpetrator or aider and abettor, in a joint criminal enterprise” that included Milošević and most of the other prominent figures included in the Bosnian portion of his alleged JCE.55 As a result, other trial chambers indirectly examined Milošević’s role and his criminal responsibility.
One must exercise caution in deriving claims about Milošević’s role from the judgments in other cases. Logically, other defendants had incentives to shift blame onto Milošević in order to limit their own liability, and this would have affected the strategies they adopted and the narratives they advanced; the Prosecution, likewise, might have had incentives to incorporate Milošević into the narrative of other trials after his death, precisely as a way of creating a record once it became clear there would be no final judgment in his case. At the same time, judges in other cases decided after Milošević’s death might have been reluctant to reach overly definitive conclusions about his role, as they were primarily concerned with issuing findings about other defendants—a reticence that would not have affected the Milošević Chamber itself. More generally, the fact that these claims derive from separate cases heard by different judges means we cannot exclude the possibility of irreducible contradictions in the factual findings of different trials at the ICTY. Nevertheless, it is worth taking a look at the factual findings in other ICTY cases, as this allows us to develop a basis of comparison to the tentative, interim account in the Decision in order to gauge its value as an historical interpretation.
Already in the very first case tried at the ICTY, the figure of Milošević appeared fleetingly on the stage, even though the accused, Duško Tadić, was a mere pawn in the overall conflict. In appraising briefly the findings in Tadić concerning Milošević, it must be observed that, much more than subsequent ICTY cases, the Tadić Trial Chamber indulged in sweeping findings of fact that significantly exceeded the scope of the case.* This arguably stemmed in part from the prevalent skepticism at the time that the ICTY would be able to apprehend and try higher-ranking officials.56
The Tadić Trial Chamber possessed very little of the considerable information that the Tribunal would eventually gather demonstrating political and military linkages between Milošević and the Bosnian Serbs; therefore, the Tadić judgment dealt with Milošević primarily in his role as an ideological and political inspiration. This arguably had distortive consequences for the Prosecution’s subsequent investigative and prosecutorial strategy. The judgment found that “Milošević used nationalism to project himself charismatically as the protector and patron of Serbs throughout the former Yugoslavia”57 and that he used his political power to establish “a very effective control of the media,” which “was very effectively directed towards stirring up Serb nationalist feelings and converting an apparently friendly atmosphere as between Muslims, Croats and Serbs in Bosnia and Herzegovina into one of fear, distrust and mutual hostility.”58 The judgment noted the identification of the Bosnian Serbs’ Srpska demokratska stranka (Serbian Democratic Party or SDS) with Milošević’s policies.59 As for the accused, Tadić, the judgment noted that he had personally identified himself so strongly with Milošević that he wanted to name his child after the Serbian leader.60
The mention of a policy of “Greater Serbia” and its attribution to Milošević is perhaps the most important aspect of Tadić for our purposes. The Tadić judgment concluded that the “practice of ethnic cleansing was adopted” as part of a policy of “achieving a Greater Serbia. This concept was espoused by Slobodan Milošević, with ethnic Serbs widely adopting it throughout the former Yugoslavia.”61 As Boas discusses in his chapter, it was precisely the alleged existence and implementation of this policy in Croatia, Bosnia, and Kosovo that led the Prosecution to argue that the three indictments should be joined into one.† This fateful decision, and the Trial Chamber’s acceptance of it, came to be seen by critics as one of the major mistakes of the Milošević proceedings.‡ Moreover, the Prosecution’s use of Greater Serbia—and hence various trial chambers’ understanding of the concept—was far from rigorous or consistent, notwithstanding—some argue because of—expert witnesses who testified at the ICTY about this ideology.§
Tadić was in some respects a naïve case tried during the infancy of the Tribunal. By contrast, the Krajišnik judgment appeared when the Tribunal had reached a stage of considerably increased maturity in its operations and its understanding of the conflict in Bosnia. Significantly, though, Krajišnik generally reiterated the broad findings about Milošević found in Tadić. The relatively few mentions of Milošević focused on ideological agreement between him and the Bosnian Serb leadership, rather than forensic assessments of his command and control or actual knowledge of crimes.62 This kind of cross-fertilization of cases, rather than adding to the historical knowledge about Milošević, instead featured internal replication of information from the Tadić judgment.
Certainly the most significant element of Krajišnik, when examined next to the Milošević Decision, is the acquittal of Krajišnik, the president of the Assembly of RS and a member of its Presidency, on the count of genocide. Indeed, a number of other major cases against Bosnian Serbs accused of genocide in 1992, such as Brđanin and Stakić, have returned acquittals on genocide. Only in June 2010, in Popović et al., did the Tribunal issue a conviction for genocide, in a judgment that made little mention of Serbia’s role; until then, there had been only a single conviction for complicity in genocide in Krstić. This would point to a tentative conclusion that genocide was not committed in Bosnia except at Srebrenica in 1995. As a corollary, it might reasonably be expected that the Milošević Chamber, notwithstanding its prima facie findings of genocide in a number of municipalities, would not have reached a genocide conviction for the period of 1992 in Bosnia. Indeed, by restricting the scope of the genocidal JCE at Srebrenica to a small group of VRS officers, the Popović judgment comes close to shutting the door to a genocide conviction for any actors from the FRY or Serbia even for the events at Srebrenica in July 1995—a turn Hartmann ascribes to a more general shift in the Prosecution’s strategy.*
Turning to Croatia, the two major cases besides Milošević tried at the ICTY are those of the Croatian Serb leaders Milan Babić and Milan Martić. Babić, who pled guilty, painted a portrait of extensive engagement and interference by Milošević in the breakaway RSK. Babić admitted that he and other Croatian Serbs sought help from Milošević, the authorities of Serbia, and the JNA, but also claimed that the end result was the establishment of a “parallel structure” that to some extent led back to Milošević.63 The Babić Chamber, again echoing the judgment in Tadić, stated that the Serbian media manipulated events in Croatia, and that Milošević “produced” events.64
Viewed as sources, ICTY judgments based on plea bargains are significantly less useful to historians than are judgments from cases in which a full trial is held. Judgments emerging from plea bargains are comparatively shorter and contain much less specific detail and reasoning than do those in which both prosecution and defense have presented their full cases. It is instructive, for example, to compare the 35 pages of the Babić sentencing judgment to the 200 pages in Martić. In addition, the Prosecution has incentives to convert a lower-level accused into a witness against a higher-level accused. As this involves some reduction of charges or punishment in exchange for a particular set of admissions that are strategically useful to the Prosecution, there is the risk of moral hazard infecting the truth value of the admission.
The Martić judgment, based on a trial judgment rather than a plea (though relying also on Babić’s testimony), includes more detailed information about Milošević’s role, including his opposition after 1991 to a political merger of the Croatian Serbs’ political entity with Serbia, seemingly in contravention of the Greater Serbia thesis:65
However, Slobodan Milošević covertly intended the creation of a Serb state. Milan Babić testified that Slobodan Milošević intended the creation of such a Serb state through the establishment of paramilitary forces and the provocation of incidents in order to allow for JNA intervention, initially with the aim to separate the warring parties but subsequently in order to secure territories envisaged to be part of a future Serb state. In Milan Babić’s view, Slobodan Milošević advocated this political objective from the summer of 1990 until the end of 1991.66
Milošević’s ability to espouse and then oppose the unification of territories under Croatian Serb (and Bosnian Serb) control tend to paint a portrait of a ruthless political opportunist rather than a passionate adherent of a Greater Serbia. Regardless of what it says about the accuracy of the Prosecution’s Greater Serbia theory as a description of Milošević’s policies over time, the judgment confirms Milošević’s ability to intervene in the political and military affairs of the RSK.67 In addition to finding that the JNA and VJ supported the SVK in Croatia, the judgment also noted that the Serbian Služba državne bezbednosti (State Security Service or SDB) operated in the RSK independently of the RSK authorities and that Serbia provided material assistance to the armed forces of the RSK.68 Perhaps most intriguingly, the judgment found that Martić had indicated in advance to Milošević that rockets might be used to attack Zagreb.69 As late as January 1994, Martić referred to Milošević as “our Serbian leader.”70 As such, the Martić judgment provided a number of factual conclusions that permit some of the gaps left open by the Milošević trial to be plugged.
Momčilo Perišić served as the Chief of the General Staff of the VJ from 1993 to 1998 and was indicted for crimes in both Bosnia and Croatia. Even though Perišić was not mentioned as a member of the JCE in the Milošević indictments, the Perišić trial judgment included a number of direct references to the role of Milošević—findings that remain valuable as historical data notwithstanding the Appeals Chamber’s subsequent acquittal of Perišić on all counts. For example, it notes that Milošević was completely aware of the establishment of phantom personnel centers that permitted the VJ to finance the SVK and the VRS. Perišić had prepared this proposal and presented it to Milošević in October 1993, noting that “we have paved the way for the President of the state, in his capacity as Supreme Commander, to issue an order regulating their status and that of officers here.”71 Milošević knew precisely how sensitive this order would be and “stressed that only a single copy of the proposal [and of the later order] should stay with Perišić.”72 The establishment of the personnel centers was critical to the financing and functioning of the Croatian Serb and Bosnian Serb armies.
The Perišić trial judgment also revealed that the political and military leaderships of the FRY, the RS, and the RSK all met in Belgrade in November 1993 in order to draft “a single war plan.”73 This so-called “Drina Plan,” finalized on 14 November, constituted perhaps the most direct documentary evidence of Greater Serbia ever introduced at the ICTY, as it “provided for the creation of a single Serbian State.”74 The Perišić Trial Chamber considered both the lack of evidence that this particular aspect of the Drina Plan was implemented and other evidence that “Milošević distanced himself from the idea of a single Serbian state.”75 Weighing all the evidence presented on the Plan, the Trial Chamber concluded that
regardless of the true nature of the Drina Plan, the evidence shows that Perišić participated in the preparation and approval of this plan together with other military and political leaders of the FRY, RS and SVK. The Trial Chamber is also satisfied that while the plan was not implemented in the VJ, some actions were taken at the Main Staff level in the VRS and SVK, and to some degree at the VRS Corps level, to implement it.76
Perišić was shown to have acted on Milošević’s behalf in pressuring the Bosnian Serbs in 1994 and 1995 to accept internationally mediated peace plans.77 On numerous occasions, Perišić and Milošević attended meetings together with top SVK and VRS officers, as well as with RSK and RS civilian leaders.78 Both Perišić and Milošević were shown to have received regular communications about the evolving situation in Croatia and Bosnia, and Perišić and Milošević “very often” discussed the UN safe areas established in Bosnia.79 Soon after the fall of Srebrenica in July 1995, Milošević asked Perišić about his knowledge of the killings there; the Trial Chamber found that, despite knowing of the crimes, neither Milošević nor Perišić took steps to cut assistance to the VRS.80 However, when Bosnian Muslims fled into Serbia after the subsequent fall of the Žepa enclave, Perišić asked Milošević to stop the Serbian MUP, whose members allegedly planned to kill the refugees.81 The Trial Chamber also received evidence that, on 24 July 1995, Perišić met with Mladić and Milošević, and that Milošević then lamented that “Srebrenica and Žepa have damaged us very greatly[.]’”82 Finally, the Trial Chamber found that Perišić and Milošević had on several occasions discussed specific combat operations in Croatia and what should be done about them.83 Milošević regarded Perišić as a person who had authority over the SVK and through whom orders could be issued.84 Overall, the Perišić trial judgment cast significant light on the role of Milošević in the Croatian and Bosnian wars. Milošević was shown to have participated in crucial decisions that ensured that the SVK and VRS could continue to function with the financial and material support of the VJ and the FRY. This support continued long after there could no longer be the slightest doubt that these armies were committing war crimes and crimes against humanity. Although Milošević was only the President of Serbia during the wars in Croatia and Bosnia, and therefore had no de jure authority over the VJ, the most significant decisions were taken at his behest, and not that of FRY President Zoran Lilić (or, earlier, Dobrica Ćosić). The Perišić judgment did not pronounce definitively on the structure of the FRY’s civilian leadership, but leaves a clear impression of a state controlled by Milošević, with Lilić signing whatever documents required his de jure approval.
In February 2013, the Appeals Chamber overturned Perišić’ conviction on all counts. No legal authority attaches to the evidence and testimony from the original trial—the point which, for Waters, appears decisive—but the factual quality of many of the points established there can be judged independently of the Appeals Chambers’ formal ruling. The Chamber did not find sufficient evidence of guilt, but this does not mean it rejected the truth of the many individual details and documents from which a compelling history can be constructed. Nor, indeed, is the historian constrained by the judges’ view of the individual facts in any case; the Perišić trial record stands on its own, just as that of Milošević does, and the two may usefully be read together.
The amount of information about Milošević that can be harvested from other ICTY judgments pertaining to Croatia and Bosnia is, generally speaking, quite modest. By far the best indications of Milošević’s role can be drawn from the trial judgment in the case of Milutinović, Šainović, Ojdanić, Pavković, Lazarević, & Lukić—popularly abbreviated as the “MOS Trial.” Of all cases at the ICTY, MOS exhibits the highest level of synergy with the Milošević trial. This is natural, given that several of the accused in MOS were originally indicted together with Milošević in 1999* and that the MOS Trial Chamber relied in part upon testimony and evidence given in Milošević.†
The MOS Trial Chamber issued its judgment in February 2009, nearly three years after Milošević’s death. Notwithstanding the acquittal of Milan Milutinović, the former president of Serbia, the guilty verdicts against the other accused were collectively perceived in Serbia as a belated judgment against Milošević and the Serbian state. The Serbian press took particular note of the Chamber’s finding of a concerted plan in Kosovo, the execution of which involved criminal acts.85
Throughout the massive four-volume judgment, the Trial Chamber emphasized the central leadership role of Milošević. He “was able to exert much influence over various Republican, and even Federal, organs and institutions[,]”86 including control of the Serbian SDB87 and “formal command over the VJ” during the war with NATO:88 “[T]here is no doubt that Milošević as the ‘Supreme Commander’ was at the apex of the command structure of the VJ throughout the conflict.”89 At the Rambouillet negotiations in 1999, Milošević was in control of the Yugoslav–Serbian delegation even though he was not physically present.90 The direct communication between Milošević and key military commanders in Kosovo, circumventing the formal chain-of-command, was noted;91 for example, the Chamber concluded that Milošević presided over a body known as the “Joint Command for Kosovo and Metohija.”92
In painstakingly reviewing the long and torturous history of the international negotiations on Kosovo, the Trial Chamber repeatedly noted the drastic choices presented to the FRY by the international community in the months leading up to NATO bombardment in March 1999. Thus, the Rambouillet negotiations were criticized for bias in favor of the Kosovar Albanians, and the Trial Chamber refused to blame Milošević alone for the failure of these talks.93 The Trial Chamber found that Milošević and the FRY and Serbian military and political leadership “were understandably reluctant to agree to an international presence in Kosovo[.]”94 One might question the relevance of these discussions to a narrow vision of the criminal charges, but given that the Trial Chamber was in fact able to hear testimony and read documentation produced by virtually all the key participants in international negotiations related to Kosovo in 1998 and 1999, including the major Serb actors, the trial record gives a nuanced reading of one of the most controversial episodes in Balkan diplomacy of the 1990s, and offers historians a very good point of departure for a history of the international diplomacy preceding the 1999 war.
As regarded the crimes committed in Kosovo, the Trial Chamber found that Milošević was among those who actively conducted a “clandestine operation involving the exhumation of over 700 bodies originally buried in Kosovo and their transportation to Serbia proper [which] took place during the NATO bombing.”95 Moreover, the Trial Chamber concluded that Milošević “knew that the great majority of the corpses moved were victims of crime and civilians, including women and children.”96 Throughout the MOS judgment, particularly in volume three, the impression is given that the Trial Chamber had concluded that Milošević was principally responsible for the crimes committed by the Serbian forces in Kosovo, and that the criminal liability of the defendants depended to a very considerable extent on their proximity to, and relationship with, Milošević. This was evident in the judgment’s treatment of Nikola Šainović, who in 1998 and 1998 was Milošević’s personal representative for Kosovo. “His primary role was to implement Milošević’s objectives there and co-ordinate the activities of the VJ, the MUP, and other armed organizations.”97 By inference, most if not all of Šainović’s conduct reflected the policies and intentions of Milošević, whom the judgment stated “was seen to be the most powerful in the FRY at the time.”98 In fact, the entire section of the MOS judgment exonerating Milutinović results in a thoroughly incriminating portrait of Milošević’s role.99 Thus although the Trial Chamber was “convinced” that Milošević and Milutinović “met during the NATO air campaign and exercised formal command over the VJ,”100 the judges expressed “no doubt that Milošević, as the ‘Supreme Commander,’ was at the apex of the command structure of the VJ throughout the conflict. For example, during the NATO bombing, Milošević, but not Milutinović, was meeting with [the Chief of the VJ General Staff] Ojdanić on a daily basis[.]”101 And as regarded the police, who committed significant crimes in Kosovo, Milutinović’s “less than extensive powers relating to that organ were even more circumscribed by Milošević[.]”102
The essential findings of the MOS judgment are reiterated in the judgment in the trial of Vlastimir Đorđević, a high-ranking official of the Serbian MUP during the Kosovo conflict. Milošević was found to have “directed and controlled” the SDB.103 This was particularly significant, as the SDB controlled the Jedinica za specijalne operacije (Unit for Special Operations or JSO) that committed crimes in Croatia, Bosnia, and Kosovo. The Đorđević judgment found that, at least on one occasion, Milošević sought punitive measures against the head of a particularly notorious paramilitary group known as the Škorpijoni—well-known because of the infamous Srebrenica video that was aired during the Milošević trial—but that Milošević “would not hold to account [Minister of Internal Affairs] Stojiljković and Đorđević for the crimes committed by the Scorpions members.”104 By contrast, the Đorđević Trial Chamber found information to indicate “not only that Milošević was aware that such crimes were being committed, but that he intended that they be committed.”105 And Milošević on several occasions “ordered Stojiljković to take measures to remove all traces which would indicate evidence of crimes in Kosovo.”106 In July 1999, Milošević issued awards to high-ranking police officials who had been involved in the conflict in Kosovo, including Đorđević and several others later convicted by the ICTY.107 The Trial Chamber concluded that Milošević was a member of a JCE that had committed substantial crimes in the course of a “campaign of terror orchestrated against the Kosovo Albanian civilian population in 1999”108 as part of a conscious and intentional element of a common plan.109 In convicting Đorđević, the chamber also indirectly pronounced a guilty verdict on Milošević by noting that “putting aside Milošević and Stojiljković, who have since died, in the Chamber’s finding, no other member of the joint criminal enterprise made a more crucial contribution to the achievement of its objective [than Đorđević].”110
Of all the judgments at the ICTY to date, MOS and Đorđević judgments yield the most detailed information to date about Milošević’s role in the former Yugoslav conflicts. This may appear somewhat ironic given that some earlier assessments of Milošević argued that the Kosovo portion of that case was the weakest.111 Unfortunately the time frame of MOS and Đorđević means that the judgment largely confines itself to developments in the late 1990s. And as has been seen, with the partial exception of Perišić, the judgments from the Bosnian and Croatian cases have been comparatively brief in their treatments of Milošević. Nevertheless, the outlines of Milošević’s role, and in particular his relationship with other important Serb political and military leaders, do emerge from these judgments. One should also not forget the extensive and much more detailed information available about Milošević in the transcripts of these cases and, of course, in the documentary and electronic evidence tendered by both the Prosecution and the Defense. Judgments, even ones as lengthy as those at the ICTY, will always be able to cite only part of the relevant evidence.* Much more documentation awaits the intrepid researcher.
At a very banal level, any trial of Slobodan Milošević was always going to be a monumental event. The first international criminal trial of a head of state was perceived both internationally and in the former Yugoslavia as the “trial of the century” and “a historical trial.” But was it good history?
As noted at the outset, this chapter is part of a larger scholarly project examining the intersection of history and international criminal justice. This particular research is to a considerable extent motivated by the tendency in international and former Yugoslav media to pronounce the ICTY a failure because the Milošević case did not succeed.112 Such views can also be found in the scholarly literature, where even internationally renowned experts have at times conflated the Milošević trial with the ICTY as a whole. For example, Michael Scharf wrote in 2003 that Milošević “is clearly the trial for which the Ad Hoc Court was created. Thus, the answer to these questions may dictate the ultimate success or failure of the Tribunal itself as a mechanism for restoring peace in the Balkans.”* And James Gow and Ivan Zverzhanovski claimed in 2004 that “despite the large number of cases handled by The Hague, it is the Milošević trial that will define the Tribunal’s success of failure in the eyes of the world and of history.”113 Such facile verdicts on the Tribunal ignore the innovations that the ICTY has contributed to international jurisprudence, as well as the mountains of documentation that the ICTY has made available for generations of researchers to come. By examining other judgments at the ICTY, we can see the interlocking narrative about the conflicts in the former Yugoslavia that can be constructed if one is willing to look beyond Milošević and see it in its full context. Viewed from that vantage point, the trial of Slobodan Milošević was not in vain, and the evidence and documentation first introduced in that trial have not been consigned to oblivion.
Historians need to understand the Milošević trial and its documentary record in the context of all of the trials processed at the ICTY (and in the extraordinary war crimes courts of the former Yugoslavia).† To the extent that the Prosecution erred in trying to achieve too much through Milošević, the scholarly emphasis on this particular case perpetuates a distortive reading of the conflict in the former Yugoslavia. Here it can be useful to compare with the main trial at Nuremberg. The trial itself, as well as its documentary record, made a unique and incomparable contribution to the history of Nazi Germany and World War II. The main Nuremberg trial was the first to convey to the international public the magnitude of the Holocaust. However, as numerous scholars have pointed out, the proceedings and judgment in the trial also revealed significant shortcomings in the understanding of the scope and modalities of the destruction of European Jewry.114 Decades of research and vociferous scholarly debates (e.g., “intentionalism” versus “functionalism”)* resulted in an extremely detailed and nuanced historical record that can still surprise us with new revelations. The at-times myopic focus on Milošević, mentioned earlier, and the search for the proverbial “smoking gun” linking him to the crime scene reminds us of attempts at Nuremberg and by later historians to locate the documents in which Adolf Hitler ordered the “Final Solution.” For some time, this quest obscured the extensive involvement of a bureaucratic apparatus and “ordinary people” (and not just Germans) in the Holocaust.115 Seen from this vantage point, Milošević is indeed the beginning and not the end of the historiography of the former Yugoslav conflict.
As with most of the trials at the ICTY, the ultimate legacy of Milošević resides in the court records, and particularly in the exhibits introduced at trial. Many if not most of the documents and testimonies used in Milošević, which were of course only a portion of the Prosecution’s total collection, might never have seen the light of day if the Tribunal and the trial had not existed. At a minimum, most of this information came out decades before it normally would have according to most laws on national archives.† Paradoxically, the same avalanche of documents, transcripts, and audio and video recordings that dismayed the Trial Chamber and the Accused’s legal advisor in Milošević represents a treasure trove of epic proportions for generations of historians: in excess of 1.2 million pages; 46,000 pages of transcripts; a record of more than 85,000 pages; and Prosecution exhibits and over a hundred videos as of late November 2005.116 Of course, the Defense and Milošević also produced significant documentation, not least in the form of Milošević’s own indirect testimony through his examination and cross-examination of witnesses during his trial. All of this is a tremendous boon to the existing literature on Milošević and will enable scholars to produce much more detailed and nuanced accounts of him and his regime.117
Looking beyond the already considerable documentary scope of the trial, the historical record and understanding of the role of Milošević emerging from other trials at the ICTY have to date tended to complement the Milošević Trial Chamber’s Decision. Of course, the historical record of the Tribunal continues to grow, promising further refinement and clarification of Milošević’s legacy. Of the trials or appeals still to be concluded at the Tribunal, the most important for an evaluation of Milošević’s role are Karadžić, Mladić, and Stanišić & Simatović. In Karadžić and Mladić, the relationship between Milošević and the Bosnian Serb leadership and military for the period from 1990 to 1995 has been or is sure to be analyzed in detail.* Finally, the focus of Stanišić & Simatović on the Serbian SDB and its alleged crimes in Croatia and Bosnia ensures that the responsibility of Milošević dominated much of the trial and its judgment, although Hartmann suggests that the Prosecution’s focus had shifted in important ways that lessened the ability for the trial to ascertain Belgrade’s role.
Lest there be any misunderstanding, this chapter has not argued that the ICTY has produced a flawless record about the conflicts in the former Yugoslavia, or that historians can therefore relax and move on to other pastures. Rather, cases at the ICTY, including the Milošević trial, have produced a reasonable first draft of the history of the conflicts in the former Yugoslavia. This draft aligns reasonably well with the vast scholarly literature available on the dissolution of the former Yugoslavia, including much of that produced in Serbia since the fall of the Milošević regime. The book Confronting the Yugoslav Controversies by the Scholars’ Initiative reaches many of the same conclusions that the ICTY has in its judgments, and also illustrates the increasing tendency of scholars of all persuasions to cite material obtained through the proceedings at the ICTY.118 For example, the multinational teams headed by Dušan Janjić and James Gow were tasked to produce a communal chronicle of Kosovo under the Milošević regime and the war in Kosovo, respectively; their accounts agree to a very considerable extent with the factual findings of ICTY judgments. The ICTY has bequeathed a vast collection of primary sources to historians, and it is essential that these sources continue to be made available to as many scholars as possible, as well as to the broader public in the former Yugoslavia.†