^* Marko Prelec is the Director of the Balkans Project at International Crisis Group and co-founder of the Balkans Policy Research Group. From 1999 to 2005 he was a Research Officer with the Prosecution at the ICTY, and was the senior researcher on Milošević from 2002 to 2004. From 2005 to 2007 he was head of the investigation and analysis section within the Special Department for War Crimes at the Bosnian State Prosecutor’s Office.

^* VSO Stenographic Notes 5 (6 Dec. 1995). Milošević was describing an incident in which the VRS captured José Souvignet and Frédéric Chiffot, two French pilots shot down in August 1995, and refused to release them until December 1995; Mladić tried to use the captives to extort changes to the Dayton Agreement and protect himself from prosecution, among other demands. See Milošević case (140), Testimony of Zoran Lilić (9 July 2003); Skinite anatemu se mene i Karadžića [Remove the anathema from me and Karadžić], POLITIKA, 29 May 2010, http://www.politika.rs/rubrike/tema-dana/Skinite-anatemu-se-mene-i-Karadzica.sr.html, for much more detail on this episode.

^† VSO Stenographic Notes 7 (6 Dec. 1995). Milošević reported making almost the same point to Bosnian Serb president Radovan Karadžić almost two years earlier: “I told Radovan to make some radical cuts, which would let him keep territory on the left bank of the Drina [river], the ‘corridor’ and the Bosnian Krajina, and not to cling desperately to every bit of the Sarajevo province.” VSO Stenographic Notes 58 (12 Mar. 1993).

^* Anglo-American conspiracy is a distinct offense, but for the ICTY participating in a JCE is only a mode of liability, though the two share many features.

^* Hierarchical responsibility arises from the ICTY Statute’s Article 7(3), by which a criminal act committed by a subordinate “does not relieve his superior of criminal responsibility,” a curiously indirect phrasing; see Damaška, Shadow Side of Criminal Responsibility, 49 AM. J. COMP. L. 455 (2001). JCE-based responsibility was imported into “committing” by the Tadić Appeals Chamber; see Danner & Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CALIF. L. REV. 75, 104ff. (2005). Aiding and abetting likewise derive from Article 7 (1). On JCE, see also Boas, Mégret, and van der Wilt.

^† Milošević case (68), Prosecution’s Second Pre-Trial Brief 2 (31 May 2002). I was the editor of this brief and one of the principal authors of many of its sections, including the passage cited here.

^* This applies mostly to Bosnia. Much of the material in the Croatia section of Milošević was new; the ICTY had only issued indictments related to three specific crimes against Croats, Pros. v. Martić (2), Initial Indictment (25 July 1995), charging Milan Martić with ordering the rocket attack on Zagreb; Pros. v. Mrkšić et al., Initial Indictment (26 Oct. 1995) charging Mile Mrkšić and others with mass killing of prisoners in Vukovar; and Pros. v. Strugar, et. al., Initial Indictment (22 Feb. 2001) charging Pavle Strugar and others with shelling Dubrovnik. Kosovo was different. There, Milošević was originally charged with four others (Pros. v. Milošević, Milutinović, Ojdanić, Šainović & Stojiljković, Indictment (22 May 1999)) while the crimes in question were still being committed, so there was no existing base of indictments on which to build.

^† Carla Del Ponte stressed that when she said “no state or organisation is on trial here today” she was not merely referring to the Tribunal’s statutory limitation to individual crimes, but affirming a broader philosophical point: “Collective guilt forms no part of the prosecution case. It is not the law of this Tribunal, and I make it clear that I reject the very notion.” Milošević case (81), Trial Tr. 4:10-12 (12 Feb. 2002).

^‡ The VSO’s voting members were the president of the FRY and the presidents of its two federal states, the Republic of Serbia and the Republic of Montenegro; other senior officials, such as the VJ chief of staff, attended as well. The VJ took orders from the president of the newly declared FRY, but could only command in accordance with policy previously agreed by the VSO, of which Milošević was a member. Milošević insisted on this point: “The Supreme Commander cannot [issue orders]; the Supreme Defense Council makes decisions, that is what it says in the constitution. The Supreme Commander does not have the right to make any decisions without a decision of the Supreme Defense Council; get that idea out of your heads.” VSO Stenographic Notes 22 (10 Feb. 1993).

The VSO’s meetings were recorded and transcribed, and during the course of the trial the ICTY obtained copies of most of these transcripts. As the senior researcher for the Milošević case, I read the original VSO transcripts in Belgrade when they were first made available to the ICTY, and reread them on many occasions thereafter. Some passages of these documents have since been placed under seal; others are publicly available on the ICTY’s Web site. There has been a great deal of—in my view wholly unnecessary—controversy over these materials, and as is common when evidence is withheld from public view, conspiratorial theories abound. I have read all of the documents in question, including the nonpublic sections; everything I say in this chapter is supported by material that is not under seal; nothing I say in this chapter is inconsistent with anything I learned while working at the ICTY.

^* VSO Stenographic Notes 16 (2 June 1993). Hyperinflation makes it hard to estimate how much this sum was worth, but by comparison, the National Bank issued 10 trillion dinars in new money during the same period; id. at 2.

^† VSO Stenographic Record 8-16 (12 Mar. 1993). Radoje Kontić, the federal prime minister, reported “the federal budget is 11.4 percent of the national product, the budget of Serbia is 42 percent of GNP and Montenegro is 2.31 percent. Half of 42 percent is extra-economic spending that you give as support to the Serb Krajinas; last year it was 30 percent.” Milošević claimed this was only nonmilitary aid, but even if this were true, it would still have left the Croatian and Bosnian Serbs with much more to devote to the war effort, and would have meant that half of Serbia’s budget, plus much of its contribution to the federal budget, went to the Bosnian and Croatian Serbs. VSO Stenographic Record 8 (12 Mar. 1993).

^* The Prosecution argued Milošević had de facto authority over JNA troops around Sarajevo up to 19 May 1992, in that they were under the command of the rump Yugoslav presidency, all of whose members were Milošević’s allies; as of 20 May 1992 the JNA and the VRS were separate, and command authority for the latter passed to the Bosnian Serb leadership. See Milošević case (68), Prosecution’s Second Pre-Trial Brief 31-2 (31 May 2002). Most of the specific allegations of shelling and sniping were thrown out at the end of the Prosecution phase; see Waters at 303, 304-305.

^* Milošević case (1) 98bis Decision 310–15 (16 June 2004). The Decision is unfortunately ambiguous about the role of “overview evidence” not related to any specific incidents, and whether Milošević was at jeopardy only for the two remaining sniping and shelling incidents or for the whole Sarajevo campaign they were meant to illustrate. See Waters at 303, 304-305, discussing this in detail.

^* VSO Stenographic notes, 7 Aug. 1992, public redacted version, at 19. “Captain Dragan” was Dragan Vasiljković, who is awaiting extradition from Australia to Croatia on war crime charges. Sud odbio odbranu Kapetana Dragana [Court rejected Captain Dragan’s defense], NEZAVISNE NOVINE, 19 May 2010, http://www.nezavisne.com/novosti/ex-yu/Sud-odbio-odbranu-Kapetana-Dragana-60180.html. “Mauzer” was Ljubiša Savić, commander of a group called the Panthers, who was later killed; see Pros. v. Popović (2), Testimony of Novica Simić passim (24 Nov. 2008). On all these, see also Milošević case (24), Exhibit 389.8a (28 July 1992) (Report of Col. Zdravko Tolimir on paramilitary units in the RS).

^* On Srebrenica, see Sec. IV, below. In their own trial, the Prosecution alleges that “Several weeks before the attack” on Srebrenica, Stanišić and Simatović “ordered the Scorpions to travel from their base in Delotic [sic] in Croatia to Serb controlled area near Sarajevo.” Pros. v. Stanišić & Simatović (2), Second Amended Indictment 10–11 (20 Dec. 2005). On the impact of the tape, see Hartmann and Bieber.

^† The Milošević Chamber found that although the video has “probative value in relation to the underlying offences charged in the indictments,” it is not “of significance for the ultimate legal question of whether the Accused is responsible for the crimes alleged in the indictments” and would not “add significantly to the existing evidence relating to the Accused’s individual criminal responsibility.” Milošević case (11), Decision on Application for a Limited Reopening of Prosecution Case 38 (13 Dec. 2005). Of course, this could mean there was already enough evidence to convict, though given Judge Kwon’s earlier dissent in the Rule 98bis Decision, this seems unlikely; see Waters at 307. On the Prosecution’s different approaches in Milošević and in Stanišić & Simatović to events surrounding Srebrenica, see Hartmann.

^‡ Milošević case (28), Exhibit P390.3a 6 (19 Feb. 2003). Milošević told Mladić on 30 June 1995 that he had spoken to the breakaway Bosniak chieftan Fikret Abdić, and decided that “we must do something so he can take Cazin,” and that “it is important to resolve the [ARBiH] 5th Corps,” which Abdić faced, “as soon as possible[.]” Pros. v. Gotovina et al. (3), Exhibit D01465.E 4099 (2 June 2009) (Excerpts from Mladić’s diary).

^§ For example, during the 31 July 1992 VSO session, Dobrica Ćosić instructed one of his ministers to go talk to Karadžić about the problem, as he was just around the block in Belgrade’s Hotel Intercontinental. VSO Stenographic notes 27 (31 July 1992).

^* Though well-disposed to Mladić, Milošević was not above twisting his arm. Milošević tried to use the VJ’s financial straits as a lever to move Mladić’s friends in the officer corps to use their influence on him: “I suggest that we immediately tell our dear colleagues in the Army [that] we can resolve the question of the budget right away…under one condition—let them convince their friends, headed by Ratko Mladić, to sign the peace plan, to lift the sanctions, and there will be no problem with the Army having a budget of three billion[.]” VSO Stenographic notes 13 (9 Dec. 1994) (public redacted version).

^† The conversation was intercepted by Croatia’s intelligence service, and appears to be the only surviving record of Milošević speaking to Mladić.

^* VSO Stenographic notes 3 (5 Aug. 1995) (public redacted version). Another speaker, probably Milošević (continuing from a redacted page), had a more realistic judgment: “They didn’t even defend it, because based on all the reports we have from the police, citizens and others, as soon as the artillery preparation stopped at seven in the evening, they ordered—a headlong flight!” Id. at 24.

^† Pros. v. Gotovina et al. (1), IT-06-90, Exhibit D01465.E 4096, Meeting between Milošević, Bulatović, Perišić and Mrkšić, 29 June 1995 (2 June 2009) (Excerpts from Ratko Mladić’s diary selected by the Gotovina defense (English translation)). Hrvoje Šarinić thought the same, namely that Milošević believed “the Muslims could not hold out in [Srebrenica] and that was enough for him.” Milošević case (29), Exhibit P641.2 12, Statement of Hrvoje Šarinić (21 Jan. 2004).

^* The initial orders had been issued by Karadžić and Mladić in March 1995; VRS forces were moving into position in May, taking a UN observation post on 31 May. Pros. v. Krstić (2), Judgment 28–30 (2 Aug. 2001).

^† And not only his: Indeed, Milošević described the territorial swap of the eastern enclaves for Serb-held land around Sarajevo as the “American plan” to “correct the maps[.]” VSO Stenographic notes 25 (5 Aug. 1995) (public redacted version).

^‡ See Hartmann at 472.

^§ See Waters’ discussion of the Rule 98bis Decision and Kwon’s dissent.

^* VSO Stenographic notes 29 (2 June 1993) (public redacted version) and id. 13 (13 Jan. 1995) (public redacted version). Milošević linked this to Karadžić’s reputation as a gambler: “It’s the logic of a gambler who’s losing, and thinks he will win it back, and in the end loses everything! He actually is a gambler—you all know that—but he shouldn’t gamble with the state!” VSO Stenographic notes 28 (11 Nov. 1994) (public redacted version).

^* VSO Stenographic notes 58 (12 Mar. 1993). These are, of course, the main components of the RS as agreed at Dayton.

^* Until recently, even the public record was public in name only; trial exhibits were in practice unavailable to the public. Though this has now changed, sifting through thousands of exhibits remains a task only professional historians are likely to attempt. Those interested should experiment with the ICTY’s new Court Records database (http://icr.icty.org), which provides access to public exhibits and filings, though using it remains a challenge. The database contains only selected exhibits, usually only for completed cases; the ICTY’s “public” exhibits are thus often not accessible to the actual public. See, e.g., Pros. v. Šešelj (2), Decision regarding public access to exhibits (18 Sept. 2008).

^* In September 1995, Milošević told Šarinić that at the upcoming (Dayton) conference, they should “see to it that the roof of Bosnia and Herzegovina was as thin as possible,” and that “we are each going to annex our part of BiH.” Milošević case (29), Exhibit P641.2 12 (21 Jan. 2004) (Statement of Hrvoje Šarinić).