The Prosecution’s Construction of Milošević
International Crisis Group*
Did the Milošević trial leave the public with a truthful image of Slobodan Milošević, the Yugoslav wars, and his role in them? The Prosecution portrayed Milošević as the man most responsible for the atrocities committed in wars in Croatia, Bosnia, and Kosovo. This image was built up from the Tribunal’s earlier case records, in which Milošević had figured as the wizard behind his curtain, and from a decade of media commentary. In several important respects the evidence uncovered during the trial showed this image to be largely false: His relationships with the Bosnian and Croatian Serb leadership, and with Ratko Mladić, were all very different from what the Prosecution sought to prove. The ICTY has left the public with a narrative of Milošević and the war that is in many important respects simply wrong. This raises serious questions about the ICTY’s role in establishing the truth and changing attitudes in the Balkans.
Just before noon on 6 December 1995, Slobodan Milošević addressed the assembled chiefs of the VJ, to inform them of the results of the Dayton peace talks. He had to explain the end of a war that had bankrupted his country and taken many Serb lives. These men had been deeply involved: NATO had bombed their Bosnian Serb kin, some of whom were professional colleagues; and now those colleagues would play host to NATO as it occupied all of Bosnia. Maybe there was some anxiety. If so, it passed quickly. “As briefly as possible, the results! When the result is clear, then it doesn’t need a lot of explanation. In a word—we succeeded!” Then he excused himself to take a phone call from Jacques Chirac.1
When he came back, Milošević was furious. “I think the Vojska Republike Srpske [VRS] and [commander of the VRS Main Staff Ratko] Mladić personally are acting in the worst, most immoral way,” he said. Mladić, a highly respected officer with decades of personal connections among the VJ brass—and on paper still a serving VJ officer—had fewer than three weeks earlier been indicted by the ICTY for the mass murder of eight thousand Bosniak men and boys from the United Nations safe area around Srebrenica.2 This, the most notorious European crime of the second half of the 20th century, was not on Milošević’s mind on this day. He was enraged by something that seemed, to him, even worse:
They took the pilots prisoner, had their pictures taken with them, and now they’re trying to sell us a story “how someone kidnapped them and they don’t know where they are!?” Not even an infant could believe that story, and they expect someone else in the international community to believe a story like that!? They’re playing with the fates of millions of people and relations between countries, because of their whims or because they want to sell those two pilots for some personal guarantee of theirs!? I think that has nothing in common with military honor! It is the worst military dishonor and criminal behavior toward the state and toward persons. By the way, mistreating a prisoner of war is a war crime, among other things! Killing a prisoner of war is a war crime! The pilots were photographed alive with their officers. Therefore, if anyone did anything to them afterward, he’s committed a war crime!*
In the remainder of his long speech, to which we shall return, Milošević subjected Mladić, Radovan Karadžić, and the Bosnian Serb leadership to a torrent of abuse:
We saved the existence of Republika Srpska and we established Republika Srpska, despite all the crimes they committed to destroy Republika Srpska. Everyone who died over the last two years died in vain! All the territory lost over the last two years didn’t have to be lost, you could have drawn a map in those conditions, of course, half-half; it can’t be otherwise! It can’t be otherwise—I told them that two years ago, ‘My dear sirs, you have to stop thinking about what you want, you have to think about what you deserve. We Serbs don’t merit more than half of Bosnia and Herzegovina, we can’t get any more! Because we’re a third of the population.… Can you even imagine squeezing two thirds of the population into 30 percent of the territory, while 50 percent isn’t even enough for you? Is that humane, is that just?’ And do you think they understood that? No way!†
In the whole speech, Milošević only mentioned Srebrenica once—as an example of the success of Serbia’s negotiators (that is, of himself) at Dayton. Srebrenica and the Drina valley towns, he pointed out, were all included in the RS, even though none of them had a Serb majority before the war.3
It was a bravura performance by a master at the peak of his powers, full of confidence, freshly back from Dayton where he had been acknowledged as the indispensible peacemaker, now casually taking calls from world leaders as he cemented the loyalty of Yugoslavia’s political and military elite. However, Milošević’s triumph would be short-lived. He never managed to convert the glow of Dayton into lasting western support, and soon became entangled in a conflict with Kosovo’s long-suffering Albanian population. Fewer than four years later, he would fight and lose a war with his Dayton hosts and their NATO allies. That war, in which forces under Milošević’s command killed thousands and expelled hundreds of thousands of Kosovars, led to his indictment and trial, which brought to light the secret transcripts of his meetings.
How do we explain this? Set aside for a moment the bizarre moral calculus, in which the publicized fate of two French airmen weighed more heavily than that of eight thousand anonymous locals. This kind of distortion was not unique to Milošević—neither Chirac, nor anyone else was interrupting Milošević’s day to demand justice for Srebrenica. Consider instead whether this sounds like a man who, as many believed and the ICTY would later charge, had devised, planned, and directed the Bosnian Serb war effort, complete with genocide, ethnic cleansing, and other horrific crimes. Is this the voice of the Butcher of Belgrade, the mastermind of Greater Serbia and all its pawns and schemes?
The ICTY sought to answer this question by means of a criminal trial in which Milošević’s central role in the Yugoslav wars would be explained, proved, and condemned. Though it ended suddenly with the death of the Accused before judgment, the trial record remains and can be analyzed. It provides a case study for ICL at its most ambitious, and by examining it we can begin to judge the Prosecution’s work: Did it provide a truthful image of Milošević?
The Prosecution was convinced that Milošević was the central, and centrally culpable figure in the conflict. This image was built up from the Tribunal’s earlier case records, in which Milošević had figured as the wizard behind his curtain, and from a decade of media commentary. But, the Prosecution also faced a dilemma common in ICL: When is the leader of one state criminally responsible for acts committed by agents of another? There are three ways such responsibility can be incurred: hierarchically (by means of control over the foreign perpetrators), conspiratorially (by means of cooperation in a JCE), or as an accessory (by aiding or abetting).* All three are controversial, have been litigated extensively at the ICTY and elsewhere, and have provided the subject matter for a growing library of scholarly debate and commentary.* Reluctant to pin itself down, the Prosecution pled all three theories, while emphasizing Milošević’s role as architect and presiding genius of the JCE.4
The Prosecution set out to prove, in most concise terms, that Milošević bore responsibility because he “controlled the people who constituted the body that … did evil.”5 This body was the JCE—a group of people who coalesced around a plan “to impose and maintain Serb control over targeted regions of the former Yugoslavia by forcibly removing Muslim, Croat, Albanian, and other non-Serb inhabitants through persecutory campaigns.”† Milošević’s role in this plan was said to be “planning, enabling and directing” a campaign of power grabs throughout former Yugoslavia, coupled with the diverse forms of persecution commonly referred to as ethnic cleansing.6 After setting out in detail the criminal plans laid in Bosnia by Karadžić—plans in which Milošević barely figured save as a political advisor and quartermaster for Serb needs in general—the Prosecution summarized its theory:
In the campaign from 1991 to 1995 to achieve and maintain the “liberation” of territories and to “link Serbian territories with mother Serbia,” grave violations of international humanitarian law were committed by individuals acting through state organs and other bodies formed, supported and directed by states. The state organs and the other bodies do not bear institutional responsibility for these violations. It is the individuals who control and work their criminal purpose through these bodies that are responsible. [Milošević] is the man to whom all these bodies connected. He is the individual from whom the authority to persecute and maltreat non-Serbs derived.7
Evaluating this theory requires an examination of the limbs with which Milošević reached across the Drina. This chapter considers two: logistical and administrative support to the VRS, and Serbian paramilitary forces fighting in Bosnia. Then there is the spine, the relationship between Milošević and Ratko Mladić. The consequences of these relationships for Bosnia can best be seen in two scenes: the siege of Sarajevo and the genocide at Srebrenica, the war’s most notorious crimes.
The picture gradually revealed by the accumulation of the Prosecution’s evidence in the Milošević case is fascinating and compelling, but fits awkwardly with the Prosecution’s principal theory—which sought to prove Milošević’s responsibility for crimes in the Yugoslav wars—and in places contradicts it. It was easy to prove that horrible crimes took place, perpetrated by often anonymous Serbs acting on some kind of orders or instructions issued by various Serbian political or military leaders. The ICTY tried many cases of this kind; their indictments had been combined to produce the Milošević indictment.* But it was hard to say what connected these men (and one woman) to Milošević, and why he should answer for acts carried out on their orders. The belief, almost universally held in former Yugoslavia, that Milošević was “the most powerful leader in former Yugoslavia”8 was not in itself a link sufficiently strong to bear the weight of criminal culpability.
The focus on a chain of individual responsibility culminating in Milošević was both a necessary artifact of the Tribunal’s jurisdiction and a product of ICL’s worldview, which believes that individualizing guilt breaks cycles of collective recrimination and paves the way for reconciliation.† But the nexus between collective action and individual responsibility does not reduce neatly to categories recognized by the criminal law. It also raises a question: When political goals that are repellent but not criminal—such as controlling disputed territory to which another polity has a stronger moral claim—are pursued by criminal means, what responsibility attaches to the planners of those goals? Evidence of Karadžić and other Bosnian Serb leaders’ planning to seize power and break apart Bosnia is abundant,9 as is Milošević’s role as advisor and mentor in these plans; as it happened, the Bosnian Serb leadership implemented those plans through ethnic cleansing, but here the evidence of Milošević’s role is in places absent, in others exculpatory.
The trial record, truncated though it is by the death of the Accused, is sufficient to conclude that Milošević was deeply involved in approving Serbia’s and the FRY’s provision of military supplies and other aid to the RS and RSK. Through the VSO‡ Milošević helped set policy for the administration of salaries and benefits for several thousand Serb officers detached from the JNA and incorporated into the VRS. The VRS would have found it very hard, even impossible, to act as it did without this support.
Milošević broadly supported the RS against criticism of the war’s expense when costs rose and the war dragged on into its first winter. In December 1992 he spoke of “our obligation and responsibility to help the [RSK] and [RS]” and argued that “we should see how we can help them with what they need most … in terms of materiel, equipment” and by deporting Bosnian Serb draft-dodgers from Serbia “who in any case must return to the field to defend their homes.”10
By mid-May 1993, the FRY was still paying the salaries of about 2,390 VRS officers, of whom 890 were regular VJ officers ordered into Bosnia by the then-chief of the JNA general staff, Blagoje Adžić, in May 1992.11 Some of these were JNA officers born in Bosnia and deployed there during the breakup of Yugoslavia, but the 890 were in effect seconded to the VRS with every expectation they would eventually return to posts kept open for them in the VJ.
The VJ also set policy on when certain weapons could be used. The VJ was very short of antiaircraft ammunition “because the VRS are firing at targets on the ground and they keep asking” for more, but were in better shape with antiaircraft rockets “because we have not yet allowed” their use against ground targets.12 Neither threats nor public announcements of an embargo of military aid ever actually led to a lasting cutoff; as late as August 1995 the VSO was still worrying over whether to condition “all further military aid on [RS] acceptance and implementation of the policy of the FRY leadership.”13
All of this was vastly expensive. When the financial burden became truly serious—at one point FRY Prime Minister Radoje Kontić exclaimed that they could not print money fast enough to pay for the army and aid to RS—Milošević at first defended the Bosnian Serbs: “they’re not asking for money, they only want ammunition, equipment, food, clothing.… we cannot leave them to die of hunger!”14 Milošević claimed that the FRY was spending 19 trillion dinars on military aid in the first quarter of 1993.* There was also nonmilitary aid related to the Bosnian Serb war effort—food, medicine, fuel, and the like. All this imposed staggering costs on Serbia.† By October 1993 aid to the RS was cutting so deeply into the VJ’s reserves that Chief of the General Staff Momčilo Perišić worried about the army’s ability to defend the country.
The ruinous expense eventually drove Milošević to insist on ending the war, and fueled his growing rage against the stubborn Bosnian Serbs: “Let’s be clear about one thing. We have made enormous sacrifices.… we sacrificed practically everything; this huge inflation is the result[.]”15 His attitude sharpened after Karadžić and the Bosnian Serbs rejected the Vance-Owen peace plan, which had offered them almost half of Bosnia in the first half of 1993:
up to this moment we have worked [like so], if we had to cut off our hand, we cut it off; if the water had to rise over our heads, then it was over our heads; we gritted our teeth, we endured everything. But from this moment on we have no right to do that. If it’s come to destroying the economy of this country, these 10 million [people] over here, then go ahead, gentlemen, and resolve the rest at the [negotiating] table.16
The same issues were still acute a month later when Mladić visited Belgrade to meet with Milošević and VJ Chief of Staff Života Panić, a visit he recorded in his notebook. Milošević made similar points: “The war must end as soon as possible!” He advised Mladić, “offer the Muslims acceptable options … but destroy their positions on the front” lines. Panić mentioned the option of funding salaries with loans, warning that although “the officers must not be abandoned,” nonetheless “we must differentiate matters between the VRS and the VJ.”17 Still, the aid continued to flow, at times in reduced volume, to 1995 and after.
Evidence of Milošević’s logistical and financial support to the Bosnian Serbs is abundant, and the Prosecution presented it. Yet absent evidence that Milošević had direct authority over the forces committing the crimes, or shared the intent to commit ethnic cleansing (rather than merely the hopes of winning recognition of Serb statehood west of Serbia proper), it is hard to see how that assistance proves his liability for Bosnian Serb crimes—at least, for the crimes the Prosecution charged him with and under the theories that have found favor at the Tribunal: The Appeals Chamber’s later acquittal of Perišić focused the contours of aiding and abetting in ways that would made a conviction in Milošević, much more difficult to contemplate. For all the support, the distinction among the three military structures, and between VJ officers serving in the VRS and their VJ colleagues in Serbia and Montenegro, was clear to Milošević: The RS has “formed a state, formed an army; those are officers of that army. Let’s not deceive ourselves that these are officers of the [VJ].”18 At the same meeting, Momir Bulatović, president of Montenegro and thus a member of the VSO, elaborated: “we have to be correct toward our officers: to give them a choice to come back to their posts, if they wish; but it should be clear that from now on there is no more equal sign between officers of the [VRS] and the [VJ], because the [VJ] has to follow and respect the orders of the state leadership.”19
The trial turned up few traces of hierarchical subordination or conspiratorial scheming, and not because of Milošević’s skill in operating from the shadows; the evidence was hard to find because it did not exist. The evidence uncovered by and presented at the Milošević trial showed that Serb leaders and armed forces in Bosnia were much more independent than commonly thought.
One of the most notorious crimes charged against Milošević—the shelling and sniping campaign that terrorized Sarajevo from 1992 to 1995—shows this clearly. The first problem with connecting Milošević and the siege stems from the indictment itself, which charges Milošević with “a military campaign of artillery and mortar shelling and sniping onto civilian areas of Sarajevo and upon its civilian population.”20 The Prosecution put the Bosnia indictment together using parts of its many existing Bosnia cases; for the Sarajevo charges, that meant the cases against the Bosnian Serb Generals Stanislav Galić and Dragomir Milošević, and the Sarajevo part of the case against Karadžić and Mladić. This was consistent with the Prosecution’s general strategy, but it also left a gap. The largest number of killings, especially among the encircled Bosniak civilians, took place between May and September 1992, the first months of the war. The Bosnian Serb generals charged for crimes in Sarajevo in other cases were in command only from September 1992 on, and all of the enumerated incidents around Sarajevo in the Milošević indictment stem from that later period; although the indictment speaks of shelling and sniping between April 1992 and November 1995, the earliest specific incident listed is in November 1992.21 The absence of evidence concerning Sarajevo during the early summer of 1992 made it harder to connect Milošević to the crimes there.*
One way the Prosecution tried to demonstrate Milošević’s control and responsibility for the siege was through the VSO. Yet the VSO deliberations show that neither Milošević, nor any other VSO member, shared the Bosnian Serb leadership’s appalling goals with respect to Sarajevo, and that the VSO members considered the siege of Sarajevo a disastrous folly.
During the early months of the war—a period of intensive ethnic cleansing and mass killing throughout Bosnia—evidence of Milošević’s views is scant. The VSO first met in July 1992 and its early meetings focused on the endgame of the Croatian war, notably a now-obscure dispute over the Prevlaka peninsula.22 Milošević’s attitude toward the Bosnian Serb leadership also evolved during the war, complicating attempts to evaluate his culpability. The Prosecution was able to prove that the VRS later committed crimes in Sarajevo, but by then Milošević and the FRY leadership disapproved of the entire Sarajevo campaign. Milošević and others in the VSO thought the Bosnian Serbs’ fixation on Sarajevo was a costly delusion; as he put it in December 1995:
Mladić said two days ago, “We won’t give up what belongs to the Serbs, Sarajevo belongs to the Serbs!” Please, when have Serbs been a majority in Sarajevo during this century? When? Come on, let’s see those facts! … We achieved a great result. That’s why anyone who calls it into question is either crazy or reckless or criminal, or he has some personal interest, could be war profiteering or something else.… We will not allow that!23
Milošević consistently urged the Bosnian Serbs to give up Sarajevo. In March 1993, he “told Radovan [Karadžić]… not to grasp for every bit of the Sarajevo province” but to focus on more important territory for the Serbs.24 Later that year, he told Hrvoje Šarinić, envoy for Croatian President Tuđman, that he had proposed a secret meeting to Bosnian President Izetbegović, aimed at trading Serb-held land around Sarajevo for Bosnian-held territory in the Drina river valley on the Serbian border.25 He was still advocating the same deal in August 1994, now more specifically: “the Serbs need Ozren [Mountain], Doboj, possibly Derventa, possibly some other places, which could be obtained very easily, in my opinion, in talks between the two sides and a trade for the vital areas the Muslims need to open up [Sarajevo’s] access to Tuzla, to Zenica, to Mostar,” which meant the Serb-held Sarajevo suburbs “Vogošća, Ilijaš and Hadžići.”26 In January 1995, he told Šarinić “the solution in BiH depends on Sarajevo,” which “cannot be a Serb city” and should be traded to the Bosnians in return for territory elsewhere, this time around Banja Luka.27 Months later, when Mladić asked him which Serb-held territories he proposed to surrender in exchange for peace, Milošević replied “I would give Vogošća and Ilijaš. [The Bosniaks] need a link with Sarajevo, Zenica and Tuzla.”28
Far from being part of a JCE related to the siege of Sarajevo, the VSO was opposed to the siege. After the VRS shelled Sarajevo’s Markale marketplace in August 1995, killing at least 35 people, Milošević demanded the Bosnian Serbs condemn in much stronger terms the “shelling of Sarajevo and the killing of innocent civilians” and quarreled with Mladić over the latter’s denial of responsibility.29 As the dominant figure in the VSO, Milošević—on the Prosecution’s own theory of individual responsibility for institutional actions—could not be responsible for a position the VSO consistently opposed.
At the trial’s midpoint, in its review of the Prosecution’s case, the Chamber ordered all but one each of the enumerated incidents of shelling and sniping to be dropped; because of those single remaining incidents, all the counts related to the siege of Sarajevo were maintained.*
Mr. President, we are proud of the “unit” and the opportunity to serve our nation during a fateful time.30
None of this implies that Milošević, or the Serbian and FRY state leadership, were wholly separated from criminality in Bosnia. Small Serbian forces, both regular VJ forces and paramilitaries, fought on and off, and both committed and facilitated serious crimes, in Croatia and Bosnia. Milošević’s relationship to these paramilitary groups remains murky, and he may have chosen not to know the full extent of what was done to support and manage these irregulars by senior, trusted members of his Ministry of Internal Affairs.
With regards to Croatia, the Milošević Prosecution probably understated the extent of Serbia’s control over, and responsibility for, events in the Serb-held areas of the RSK. Swapping members of the Croatian Serb government like a coach rotating his players, Milošević displayed a casual mastery that eluded him in Bosnia. After Croatian Serbs spent some of Serbia’s aid on buying Second World War–era Chetnik-style headgear for its troops, Milošević exploded:
They’re idiots, they want to look like Chetniks.… We’ve cleared that up with them, and that’s why the Prime Minister is being fired! [Stojan] Španović, the Defense Minister they got rid of, has got to come back, and [RSK Prime Minister Zdravko] Zečević is going to fly. Because, we’re not going to support Chetnikism! That much is clear. They will do all this immediately, if they want even to speak to us.31
Serbia’s influence in the Croatian Krajina was pervasive, and nowhere more than in Eastern Slavonia, a lawless Serb-held region that hosted the paramilitary groups just mentioned. Thus a strong case could have been made for Milošević’s control in the Krajina—stronger, indeed, than the Prosecution’s case actually advanced.
Željko Ražnjatović, known as Arkan, was the most notorious paramilitary leader in former Yugoslavia. His Srpska dobrovoljačka garda (Serbian Volunteer Guard or SDG) or “Tigers” fought throughout the former Yugoslavia. Arkan reportedly boasted that “without orders from the DB, the state security, the Tigers were not deployed anywhere.”32 The VSO devoted several meetings to the embarrassing problem of Serb paramilitaries, and during one of these sessions it turned out that Arkan was driving around Bosnia in an official vehicle belonging to the FRY Interior Ministry.33 During that meeting and in others, Milošević consistently minimized the problem, denying the presence of any paramilitaries whatsoever in Serbia and claiming that “Arkan was a volunteer while the army was active on the battlefield, [he was] under military command,” not a freelancer.34 Milošević also claimed that “absolutely no kind of [armed] formation could move” through Serbia, “without being arrested and disarmed.”35 The others clearly disbelieved this—large groups of armed men were moving through Serbia and Montenegro on the way to and from Bosnia, stealing fuel, arming themselves, and staying over in VJ bases, clearly with the support of senior VJ officers.
Yet the evident links between the paramilitaries and elements within the VJ was not necessarily the same thing as active, conscious control from the top, as the Prosecution’s theory implied. For Montenegrin President Momir Bulatović, the VSO found itself like the sorcerer’s apprentice, beset by once-useful tools that had escaped from control and now threatened their former masters. “Let’s be honest, at one time we needed those paramilitary groups. Now they are real burden and a problem” and some of them had “switched camps, now they are some kind of army” for the far-right opposition leader Vojislav Šešelj.36 Federal Minister of Internal Affairs Pavle Bulatović had the same diagnosis:
[C]ertain activities come back like a boomerang sooner or later; when the war was breaking out, and there was a poor response to mobilization, when the volunteer detachments would take whoever you wanted, whatever their mental or other personality traits, [and] over time they have become independent, established their own units, got out from under military command and separated from the ministry of internal affairs, now we have the problems that we have [in Bosnia, where] the Arkans, the Captain Dragans, some kind of “Mauzer[,]” four or five groups…the Serbian people are in danger from them, whether of theft, of rape, of arrest[.]*
The discussion at this meeting may have been freer because of Milošević’s absence; he had reacted badly when the issue had been raised before. Momir Bulatović hinted that important people still stood behind the paramilitaries: “If volunteers and some other paramilitary forces have to go to Bosnia and Herzegovina, out of some other plans and interest—I won’t get into that—then let them go and good luck to them.”37 But they were causing problems in Montenegro and alarming the large Bosniak population of the Sandžak.
The issue arose again in February 1993. Dobrica Ćosić, President of the FRY, complained about private armies mobilizing in Serbia, heavily armed men “strolling through Belgrade,” and quarreled with Milošević who, as always, denied there was anything to worry about:
ĆOSIĆ: “In the middle of Belgrade, Arkan has some kind of army that’s guarding his house!”
MILOšEVIĆ: “No. There was some kind of attempt, but they were all arrested. No one can guard a house with rifles.”
ĆOSIĆ: “When did that happen?”
MILOšEVIĆ: “It happened a couple of months ago.”
ĆOSIĆ: “This happened ten days ago, there are people with revolvers here.”
MILOšEVIĆ: “If that’s true, someone will be fired; that can’t be allowed.”38
The one who was fired turned out to be Ćosić, not whoever was responsible for dealing with the paramilitaries under Milošević’s protection. Ćosić had apparently allowed himself to take his position as Yugoslav president and commander-in-chief of the VJ too seriously, and had made the unforgiveable error of challenging Milošević on his home turf. At a meeting of the VJ general staff on 27 May 1993, Ćosić alleged, in Milošević’s words, that “the forces of the Ministry of Internal Affairs of Serbia [were] paramilitary formations, and I don’t know what else.”39 By making this accusation, he had “attempt[ed] to manipulate the Army” and thus had to be removed from the Yugoslav presidency.40
Serbia’s own paramilitary forces, and their role in backing others in the RS, disappeared from the VSO agenda with Ćosić. The paramilitaries themselves remained throughout the war, as Milošević well knew. When he met with Mladić on 30 June 1995—days before the Srebrenica operation commenced—Mladić and Serbia’s state security chief Jovica Stanišić discussed using paramilitary troops based in Serb-held Eastern Slavonia. Stanišić offered “120 perfect men who would go there in seven days. These would be people from the eastern sector.” Another note indicated “we gave 80 from Erdut,” Arkan’s base in Eastern Slavonia, and “80 from Djeletovci,” the nearby home of the Škorpioni.41 Mladić’s diary for the occasion refers to Mile Novaković and Mile Mrkšić, VJ generals who commanded forces in the RSK, which implies that at least some of these forces were meant for Croatia or the Bihać pocket, but members of the Škorpioni committed the video-recorded murder of several prisoners from Srebrenica in late July 1995.* This tape is conclusive evidence that Serbian forces committed murder in Bosnia, yet it may not implicate Milošević in the Srebrenica genocide: It is not clear Milošević knew of the particular events in the video until much later.†
Milošević gave the paramilitaries the money and political cover they needed to operate, and he was close to their patron Jovica Stanišić. Paramilitary units fought all over Croatia and Bosnia. One of their leaders reported “47 soldiers were killed and 250 wounded in combat operations at 50 different locations.… 26 training camps for special police units of [RS] and the [RSK] were also formed in that period[,]” that is, from May 1991 to the end of the war in Bosnia. These units took part in “six large joint operations in eastern Slavonia, the corridor at Brčko, in the Drina, Sarajevo and Maglaj operations. In western Bosnia the unit was the backbone of Fikret Abdić’s army … who freed most of Cazin Krajina[.]”‡ On one reading, this is damning: Milošević’s own police forces fighting in 50 locations, some of which are notorious. On another, it shows the tiny scale of his involvement: the ICTY estimates overall RS military fatalities at 15,298—hundreds of times higher than those of the Serbian paramilitaries.42
Milošević had few illusions about the goals of the Bosnian Serb leadership. Even if he had discounted the many horrible stories coming out of Bosnia during the summer of 1992, and even if his subordinates and clients hid the full scale of criminality from him, he could have heard it from RS leaders themselves. Bosnian Serb delegations were frequently in Belgrade, often seeking financial or logistical help.§ During one of these visits, for example, the RS prime minister made a startling suggestion, as related by Momir Bulatović:
Just a few days ago the Prime Minister of Republika Srpska talked to the Deputy Prime Minister of Montenegro. Those are just endless demands. It looks like they are just going from institution to institution and taking what they can; they are asking for some kind of weapons, I direct them to the Army of Yugoslavia. We have a duty to help them, but we also have to understand that it is hard to collaborate with someone who, like the Prime Minister of Republika Srpska, advises us to ethnically cleanse the Sandžak and kill the Muslims there.43
Milošević seemed to have been shocked by this, and later said “we have nothing to discuss with people like that.”44 But Serbia’s support continued, as did the ethnic cleansing and killing in Bosnia.
I will not speak with Mladić any more. Because, after all we’ve done for them over these past several years, it would be a disgrace if they lied to us even about something less important! That would be dirty, shameful. And there’s nothing filthier than this! Therefore, I leave it to your collegial and military consciences—go ahead, gentlemen, if you can resolve this in any way whatsoever! I can’t get this kind of behavior in my head, I can’t understand it.45
As he despaired of coercing the RS political leadership into agreeing to one of the international agreements that would free him from sanctions, Milošević tried splitting Mladić from them: In his diary, Mladić reported Milošević telling him that “the greatest threat looms from the crazy leadership in Pale. I have no animosity toward you.”46 Openly contemptuous of Karadžić and the RS political elite, Milošević was warm and respectful to Mladić through 1994 and well after Srebrenica, only losing his patience in late 1995 over seemingly trivial issues.* Others in the FRY leadership did not share his optimism; the rest of the VSO concluded Mladić was just as unreasonable and deluded as anyone in RS, as Perišić reported: “Ratko has, in many ways, entered a sphere of unreality” and was operating on the “basic assumption that they had to win” completely, or perish.47
An unforeseen opportunity opened up on the first day of May 1995. The HV took control of the Serb-held UN protected area of Western Slavonia in Operation Flash; thousands of Serbs were fleeing, and panic was setting in. And so a little more than two months before he would order the troops under his command to murder the adult male population of the Srebrenica safe haven, Mladić placed an anxious phone call to Milošević.† Mladić spoke to Milošević respectfully, addressing him as “Mr. President,” and Milošević responded with avuncular warmth. There is a sense of familiarity and ease; in the audio recording, the tone is not one of a superior–subordinate relationship. Mladić asked for and got Milošević’s advice, not orders.
Milošević blamed the disaster on the politicians and the shoddy local military alike: “Unfortunately, Ratko… [RSK leader Milan] Martić did this on instructions from Radovan Karadžić.… you’re a soldier yourself and you know, Babić’s corps is up there and they ran like rabbits! Because, if [the HV] gets through 20 kilometers in 20 hours through a corps, that’s only possible when they’re fleeing like rabbits.”48
Mladić had other concerns and would not be tempted into a conversation about his political masters. His first request was to ask the international community “to protect this population and the army that’s surrounded, like they did with the Turks in the enclaves, Žepa, Srebrenica, Goražde and Sarajevo. Do you think that’s a good idea?”49 (Over the coming days, the Serb press would fill with hysterical stories of mass murder of this trapped population in the UN protected area of Western Slavonia; there are reliable reports of scattered HV killings but overall casualties were in fact low.50) The connection Mladić drew here, between the fates of the trapped Serbs under ineffectual UN protection, and the Bosniaks of Srebrenica, is chilling. If Croatia could get away with what many Serbs believed was mass murder under the eyes of the UN, why couldn’t he?
Milošević assured him the Americans and Russians were involved and that the Croats were under enormous pressure. He urged Mladić to get involved in a scheme to press for a political solution: “If things don’t start moving toward a political solution, my estimate is that very bad things will happen here. And I suggest to you, find the time for us to talk as soon as possible, to see what direction to work in.”51
Eventually, Milošević had had enough: “Unfortunately, Ratko, you have a completely crazy political leadership that is dragging you down to death.”52 Mladić replied that he cared only about the people, “the people are suffering, what will we do with the people, I care about the people, I don’t care about the individual from whatever leadership over here”53—meaning, apparently, Karadžić. Milošević spoke in the language of states and their leaders, in which the people appear only as an abstract category; Mladić thought in a more basic and emotional register, where doing right by one’s own overruled all other considerations.
A few months later, on the eve of Srebrenica, Milošević tried again to persuade Mladić to support the latest international peace plan. The meeting became emotional; someone accused Mladić and the Bosnian Serbs, saying “you are in an uproar, you just keep shouting that you are a divine nation.”54 Milošević must have sensed by now what kind of terms Mladić thought in, and tailored his attack to suit; he was uncharacteristically sentimental. “It is my conviction that not more than half of Bosnia belongs to us, if we get more, we are digging graves for our grandchildren. I don’t want our grandchildren to die in order to take what belongs to others … let us defend what is ours.”55 Given the suicide of Mladić’s daughter, the appeal to grandchildren seems meant to wound. Milošević pressed further, “I beg you in the name of God, it is a matter of our destiny—don’t think that I am not for the Serbian people, that I am a traitor and if you [do] think that, I’ll give you a pistol, kill me.”56
Srebrenica did not stop Milošević from making one more concerted effort to use Mladić against Karadžić. Once again, the HV provided an opening, conquering the RSK (apart from Eastern Slavonia) in less than a week in early August 1995. This was a true catastrophe for the Bosnian Serbs; it freed the Croats, and the powerful Bosnian 5th Corps, for operations aimed at the RS heartlands around Banja Luka. For the first time since the outbreak of war, the survival of the RS itself was in jeopardy. As VJ officers worried about whether the Croatian Serbs’ collapse had been caused by “psychotronic weapons,”* Milošević began working on Mladić again. The idea was to secure Mladić’s agreement to sign on behalf of the Bosnian Serbs, with Milošević as chief negotiator.57
On 23 August 1995, the VSO summoned Mladić to a meeting and pressed him hard; Milošević explained that the international community would not deal with Karadžić any more and asked Mladić to guarantee that the VRS would honor a peace deal. In what the sober and bureaucratic summary of this meeting describes as a “fairly emotional” speech, Mladić insisted he was just a soldier and would not be drawn into politics, least of all against the RS political leaders.58 Instead, he appealed to the VSO to host a summit meeting of the combined political and military leaderships of the RS and the FRY and, at that meeting, to adopt a common position. Milošević was cool to this and insisted on keeping Karadžić out; as proof of the latter’s unsuitability for serious discussion, Milošević read out a “secret letter” from Karadžić that blamed the FRY for the Serbs’ military reversals, and requested deployment of VJ troops on the “quieter fronts” while the VRS went on the offensive. He and the others appealed to Mladić to issue a public statement of just one sentence—“we accept peace”—and threatened to cut him and the Bosnian Serbs off completely. Mladić was not moved, and in the end, the VSO agreed to his demands. The summit meetings Mladić demanded took place later in August.59
What role Milošević had in the capture of the Srebrenica safe area and the ensuing killings remains unclear. Primary documentation is lacking; neither the VSO materials nor Mladić’s diary records anything noteworthy about Milošević in those days, though the records are incomplete. The sole mention is a VSO conclusion, well after the actual events, taking the RS and RSK to task for “many errors” including “a reaction to provocations from Žepa and Srebrenica [that] gave justification to the West to prepare massive air force attacks.”60
About two weeks before the attack on Srebrenica, Milošević advised Mladić, “I would not touch the enclaves, they are islands which will run out” or expire.† Given the “catastrophic” situation within the enclave at the time, with the civilian population on the brink of starvation, this was callous.61 And preparations for the assault on Srebrenica and Žepa had been under way for months, as Milošević must have known.* Taking eventual possession of the enclaves would have made sense to him—he had long before marked the Drina river valley as a key acquisition for the RS—but a spectacular escalation of criminality, and the ensuing damage to the Serbs’ international reputation, were inconsistent with his fundamental strategy.†
There remain tantalizing scraps of evidence, such as the visit of Milošević’s secret police chief to Pale on 9 July 1995.‡ Wesley Clark testified that in August 1995, he had asked Milošević why he had allowed Ratko Mladić to kill so many people in Srebrenica, and that Milošević replied, “I warned Mladić not to do this, but he didn’t listen to me.”62 In the absence of direct evidence, one is left with inferences and opinions. My own view is that Milošević must have known of the operation to take the eastern enclaves, but probably did not approve the mass killing.
After the close of the Prosecution’s case, the Trial Chamber held over all genocide charges for the Defense phase, but Judge Kwon found that “the furthest that a Trial Chamber could infer in relation to the mens rea requirement is the knowledge of the Accused that genocide was being committed…, but not the genocidal intent of the Accused himself.”63 Given the exceptionally low standard of proof for this motion, Kwon’s dissent suggests a likely acquittal on these counts had the trial gone to judgment.§
The Milošević trial’s evidence composes naturally into a mosaic image of the man at its center. Yet it was not the man the Prosecution set out to expose. His strategy, for all his famous secrecy, was simple and consistent. Milošević supported Serb control of about half of Bosnia, and if possible, a piece of Croatia, too. The Serbs seized this soon after the outbreak of war and thereafter, Milošević focused only on securing international approval through a peace plan. The issues that obsessed Karadžić and his cohort—ethnic purity, revenge for the Second World War, militant Islam, details of constitutional design, and degrees of sovereignty—did not matter to Milošević because he believed they would not matter much to the Serbs. The opinions of statesmen—the Clintons and Chiracs he peppered his stories with, and whose peer he fancied himself—were all-important.
This attitude shows early on in Milošević’s worries about the course plotted by Karadžić and the RS leadership. Their inexplicable deafness to international opinion upset him, not their war crimes. In December 1992, for example, Momir Bulatović wondered “what’s the point of further military operations in Bosnia and Herzegovina?” Milošević replied, “They don’t know either. Radovan told me he doesn’t know why they took Jajce, a Muslim town there is no way they can retain. Why should even one man die for Jajce?” Ćosić agreed: “That’s right! And how many times have we advised them about Sarajevo?” The RS, Milošević believed, was making two errors: they were fighting for land “they will certainly have to give up, because there is no way it belongs to them, and second, they are squeezing the Muslims and beating them into a smaller area,” which made them willing to fight on out of desperation and anger.64
The turning point came with the Vance-Owen peace plan. Milošević and the rest of the VSO thought it was an excellent deal for the Serbs. The RS Assembly’s rejection of the plan (humiliatingly, after a personal appeal from Milošević) enraged him. From the spring of 1993 through the end of 1995, as the RS rejected every proffered peace initiative, Milošević’s discussions of the errant Bosnian Serbs were consistent and sharply critical; he was, in effect, an advocate for peace against the Bosnian Serbs’ policy of continued war.
Milošević’s peace policy was in no apparent way motivated by aversion to war or sympathy with its largely Bosniak victims. His assessment was brutally realistic: A peace treaty would end the sanctions that were crippling his country, and would then eventually fail, allowing the RS to join Serbia. The key was obtaining international approval. Starting with the Vance-Owen talks, Milošević linked peace with lifting of the UN sanctions on his country, telling the mediators there would be “no implementation of the plan before the sanctions are lifted.”65 He made the same pitch months later to the Bosnian Serbs, arguing that their approval of the plan would block a second round of UN sanctions, while Croat-Bosniak conflict in Central Bosnia would scuttle the plan anyway.66 Most bluntly, “if the sanctions are lifted, Greater Serbia is created.”67
Milošević’s belief in the transience of the peace plans extended to the Bosnian state structure they sought to erect. After the United States won Croatian and Bosnian acquiescence to the Washington Agreement, ending Croat–Bosniak fighting and anticipating a confederation between Croatia and Croat and Bosniak-held territories in Bosnia, Milošević sought the same deal for RS and the FRY. He claimed the Contact Group agreed: “they said, “all right, it’s completely clear, the Serbs have the same right to a confederation with Yugoslavia!’ People, that, then, is a single state.”68 In private conversations, he could be even more explicit: “with Republika Srpska in Bosnia, which will sooner or later become part of Serbia, I have resolved ninety percent of Serbia’s national question[.]”69 This was something like the Greater Serbia that the Prosecution claimed was Milošević’ goal, though achieved, not through aggressive war, but through peace plans.
As time passed, Milošević increasingly saw the succession of peace plans, and the international acceptance of RS they implied, as his achievement. He had kept the FRY safe from war and for the most part, kept its troops out of action; kept the RS afloat through years of combat and privation; and created an international consensus that, he believed, would lead sooner or later to a union of most Serbs in a single state.70 The Bosnian Serbs’ stubborn, baffling failure to understand this infuriated him. Not only were they keeping his country under UN sanctions, they were also risking all he had achieved, and endangering their own state. By refusing “90 percent” of what they wanted in a hopeless attempt to get more, Karadžić and the RS leadership risked gambling it all away.*
In their quest for more territory the Bosnian Serbs failed to understand certain basic features of their international position:
We told them more than a year ago, “half the territory [of Bosnia] is the maximum [you] can count on here.” It’s not even a question of whether they are militarily capable of taking more. Saddam Hussein took all of Kuwait militarily: no argument about that! Afterward he had to abandon all of Kuwait and have them beat on half of Iraq; and then [he had to] thank them for ceasing to destroy his country and thank them even for opening a dialogue with him.71
On another occasion Milošević explained that winning territory was meaningless because “if not a single great power wants to recognize it—you’ve got to give it back!”72 And Milošević was sure that the RS could retain no more than the Contact Group offered, or about half of Bosnia’s territory.73
In some sense Milošević also believed the Bosnian Serbs’ greed for more territory had led them to make unjust demands of their former Croat and Bosniak neighbors. He often dwelled on the percentages, as in an early meeting: “the Serbs, who are 32 percent of Bosnia, can’t expect to get more than half of Bosnia, with less than half to be divided between the Muslims, who are 47 percent, and the Croats who are 17 percent.… I told Radovan to go for radical cuts, by which he could keep territory on the left bank of the Drina, the [Posavina] corridor and the Bosnian Krajina[.]”* Readers accustomed to thinking of Milošević as the tormentor of Bosniaks and Croats may be surprised by this, and he certainly showed little affection or sympathy for non-Serbs. But, as he later noted, “we here [in Belgrade] who surely aren’t cheering for the Turks, or the Ustaša…[and] as partial as we may be, absolutely cannot say that we deserve more than half of the territory of Bosnia and Herzegovina, where the Serbian people are only a third[.]”74 The Bosnian Serbs’ complaints about territory struck him as both unfair and shortsighted:
If you please, it is like this: the three of you have a loaf of bread on the table—let’s say this ashtray here. You cut it in half, and you give one half to Perišić, or rather to the Serbs, while this other half goes to these other two colleagues of ours! And who complains about getting the short end—Perišić complains! And these two keep quiet, because they’re reckoning that “since this guy is complaining, we will get the whole loaf.”75
Even in his private conversations with Mladić recorded in the latter’s diary, he made similar points. “Your key mistake,” he told Mladić, “is to see a total defeat of the Muslims as the solution. That’s not good, because they will be our neighbors, and we need good relations with our neighbors.” Then he repeated his views on justice: “Understand, Ratko, this division is fair. The world won’t accept a different division. The interests of all three peoples have to be taken into account. It is just for the Muslims and Croats to have fifty percent of Bosnia and Herzegovina.”76
Finally, when the institutional complexities are stripped away—when the question of one man’s individual criminal responsibility is at stake—what did the Prosecution say, and what did its evidence show? Approving military aid, administering the salaries of the VRS officer corps, tolerating a subculture of lawless paramilitary thugs, haggling with the RS leadership over how much land to give up—all of this suggests complicity of a kind, but none is consistent with the Prosecution’s preferred casting of Milošević in the leading role. The documentary record comprehensively disproves the Prosecution’s central claim: that Milošević controlled the principal commanders of ethnic cleansing—that is, the Bosnian Serb military and political leadership. Nor is there evidence that Milošević planned the Bosnian Serbs’ atrocities (as opposed to their political goals) with them, intended, or even approved of their commission, so charges based on JCE depend more on its formalist theory than on factual relationships. It seems likely Milošević had little to do with the indictment’s headline counts—the terrorization of Sarajevo and the genocide at Srebrenica—which went against the grain of his strategy and came when his influence was at its lowest ebb.
Milošević’s actions seem consistent with aiding and abetting Bosnian Serb crimes—but this theory of liability fits as uneasily into the context of international relations as it does into the ICTY’s late jurisprudence. How much aid must a head of state approve before acquiring liability for the actions of its recipients? Once we answer this question, another appears: Can we accept assigning the lead actor in the political drama to a supporting criminal role? Is merely abetting a war crime too pale a shade with which to paint Milošević’s likeness? Accessory to the murder of thousands and the expulsion of millions is in most contexts a grave charge; but one suspects it would have left the Prosecution and much of the public deeply unsatisfied.
Therefore, I’m telling you all this so you will understand that when you are creating a state—Republika Srpska created on half the territory—you can’t quibble about some particular place: “this quarter is Serb, so we should pull it out so it’s on the other side.” By quarters, by fields, by hills then they should say: “Where is Zvornik, where is Foča, where is Srebrenica, where is Bijeljina?” It’s impossible to talk that way.77
There is a curious similarity to the words Milošević used in speaking of unfortunate Bosniaks and Serbs outside Serbia’s borders. The hapless Serb soldiers fleeing “like rabbits” from a Croatian Army advance merit his amused contempt; their leaders, on the other hand, get his rage. The thousands of Bosniak dead in and around Srebrenica are dismissed as “a reaction to provocations,” while the detention of two French pilots provokes him to threats of war crime prosecution. References, by any party, to the justice of territorial claims—including the Bosniak claim that their clear majority in the Drina valley entitled them to sovereignty over it—was for him simply irrelevant: it is impossible to talk that way.
He was not emotionless; Milošević seems more committed to the Bosnian Serb cause than any of his VSO colleagues, and he did not try much to hide his anger with those who disagreed with him or failed him. Yet his reputation for chilly detachment was not baseless. The pleasures and sufferings—and deaths, in thousands—of people far from his Belgrade perch were distant abstractions that did not move him. The reality may be that Milošević simply stopped caring about what happened to the people outside Serbia’s borders very early during the war. He kept material aid flowing to the Serbs in Bosnia and Croatia, and allowed notorious criminals such as Arkan to thrive under the protection of Serbian state institutions. There is also no doubt he tried to get the Bosnian Serbs the best deal he could in international peace talks. His record there consisted of more than two years of failure to dislodge the Bosnian Serbs from their self-destructive intransigence. Milošević’s ultimate success at Dayton that was, in his own words, due as much to American force as it was to his own leadership.78 But the decisions that led to the atrocities of the Croatian and Bosnian wars were made by others: by the Croatian Serb and Bosnian Serb leaderships, and by a great many anonymous men, enfranchised by war. The engineer of Greater Serbia presented by the Prosecution is largely a creature of fiction.
The inaccuracy of the Prosecution’s core claim was not due to a lack of information, or faulty information: The Tribunal has amassed an extraordinary archive, and its dogged excavations of evidence, especially high-level government records that would otherwise have remained under embargo for decades, have allowed historians to reconstruct wartime events with great accuracy. Indeed, the Tribunal’s great irony is that its own evidence makes possible the revision and rejection of some of its headline factual claims.
The problem is, rather, that evidence viewed through the prosecutor’s loupe takes on a distorted aspect; when the question one wants to answer concerns specific legal tests, devised in peacetime for very different situations, then much that is vital fades while minor details jump out in stark relief. And after the trial, few bother to dig into the evidence, while many more remember prosecutorial claims set out in indictments and in public statements.* Sometimes this is corrected by the trial judgment, sometimes not. But where a trial ends without judgment the signature version of its truth remains the indictment.
So much for justice, and for truth; but what of peace, which was supposed to be one of the ICTY’s purposes? It is now clear that the ICTY’s initial peacemaking goals have been fulfilled beyond anyone’s reasonable expectations. True, it failed to prevent some of the war’s worst atrocities, and it failed to prevent a whole war in Kosovo. But it quickly removed all major war criminals from public life and left political leadership in the region to a new, relatively unblemished generation. It is hard to imagine Bosnia surviving if Karadžić had remained president of the RS. The VRS would hardly have agreed to dissolve itself into a common Bosnian armed force with Mladić or indeed anyone from his inner circle at its head. And without the ICTY, there would have been no ICTR and probably no ICC. Had the Security Council not acted to create the ICTY in 1993, the world today would be rather more hospitable than it remains for planners of atrocities.
These reflections compel a different counterfactual: What if Milošević’s power actually had been as great as the Prosecution claimed? A man truly in control of the Bosnian Serbs could have compelled their acquiescence to the Contact Group plan in 1994:
We are practically being offered to enlarge our territory by a quarter … and to enlarge our population by a tenth! And to legalize it. And even to guarantee a confederation immediately.… [T]hat secures us the right to defend those borders legally. The Iraq syndrome, of illegally encroaching on [foreign] territory, and suffering attacks for it, is lost. Therefore, we get the right to defend those borders legally, and at the same time, Russia has offered a military alliance, which would guarantee us arms and other goods and make possible a secure and stable defense of [our] territory, [and] the creation of a unified army that would be the strongest military actor in the Balkans.79
Peace in 1994 would have deprived Croatia of an excuse to retake the RSK. There would have been no Srebrenica massacre, no NATO bombing, probably no ICTY indictment for Milošević, but also quite possibly no viable Bosnian state, and no regional stability: A Bosnia composed of two entities, each in confederation with its more powerful neighbor—defended by their respective armies, with a thin Bosnian roof over them—could not have survived long.* We owe the western Balkans as they are to the Bosnian Serbs’ fatal overreach, and to Milošević—but not to his strength, rather his weakness.