The Prosecution’s Use of Evidence from Milošević
Formerly Office of the Prosecutor, ICTY*
What remains from the Milošević mega-trial? Did justice die with the man, as many victims are quick to say? This chapter examines the impact of the evidentiary aspect of the Milošević trial on other cases at the ICTY. It reviews crucial evidence introduced in Milošević that was later disregarded in other related cases. Developments in those trials show the Prosecution’s ambivalence toward the Milošević case’s evidentiary legacy. Although the case related to Kosovo and Croatia was confirmed through subsequent judgments, the Bosnia case’s legacy remains in limbo. In particular, the proceedings against Stanišić, Simatović and Perišić demonstrate the changes and flaws in the Prosecution’s post-Milošević strategy. Though Milošević’s death deprived the public and the victims of judgment, it was not him but other factors that killed the trial’s contribution to the truth.
The Milošević trial was the first to comprehensively examine Belgrade’s role in the Yugoslav wars. Although it was widely assumed that Serbia had supported the Serb combatants in Croatia and Bosnia, the full extent of that support and the mechanisms by which it was provided had not been publicly disclosed until the trial. This was not accidental: In order to convince the world that it was not taking part in the wars, Belgrade had kept much of the detail about its involvement in Bosnia and Croatia hidden.
As several other authors observe, Milošević accused the ICTY of collectively and vicariously placing the Serbian nation on trial, but the Prosecution’s real collective claim was more focused. The Prosecution’s strategy advanced an overall thesis to explain Belgrade’s involvement: a joint criminal enterprise connecting the principal actors in Serbia, the RS, and the RSK in a plan to use violence and terror to forcibly and permanently remove non-Serbs from Kosovo and from large areas in Croatia and Bosnia that were to become part of a new Serb-dominated state. At the center of this JCE, uniting its three parts, was Milošević, charged on the basis of his de jure positions, variously held over the decade of the wars, as president of the FRY and of Serbia, Supreme Commander of the VJ, member and president of the Supreme Defense Counsel; and his de facto authority over and support to the institutions of the FRY, Serbia, the RS, and the RSK, and key individuals within them.*
The indictment thus promised to explain how Belgrade—Milošević, but also his close associates in the federal and Serbian administrations, military, and police—was implicated in an arc of criminality from Croatia to Kosovo. And in the trial, the Prosecution fulfilled this promise. The evidence introduced showed how the Serbian leadership provided financing, weapons, and material support to Croatian and Bosnian Serbs; helped create the Croatian Serb and Bosnian Serb armies and set up administrative and personnel structures to support these armies, which relied almost entirely on Serbia; provided these armies with key personnel and kept its own agents in their command structures; and sent its own units over the border to fight.†
But Serbia’s role in the war was not constrained to logistical and financial support or occasional military intervention; indeed the key question, for many, was not whether Milošević enabled others to wage war and commit genocide, but whether he was himself the architect. The circumstantial, logical case was compelling: Given the intense involvement of Serbia’s highest authorities in every aspect of the wars, the question necessarily arises if they shared or even determined the common objectives, and the crimes, which the beneficiaries of their support were so involved in planning and carrying out. Did they have a common goal?
The Milošević trial addressed this subject with varying degrees of confidence. The linkage between Milošević and crimes in Kosovo was more direct due to his clear de jure and de facto authority over forces acting in territory under the FRY’s jurisdiction. For Croatia and Bosnia, the Prosecution introduced evidence indicating that Milošević not only aided and abetted crimes against humanity in specific municipalities, including the genocide in Srebrenica, but may well have participated in the planning and preparation of some of these crimes, or directed his subordinates to perpetrate them, in furtherance of the JCE’s common criminal plan.1
However in absence of a final verdict, Milošević’s precise role and the forms of his criminal liability were never determined. What kind of orders or directions did he give when meeting with his closest associates or with the Bosnian and the Croatian Serb leadership? Did he merely acquiesce in or provide support to their plans? Did he give general directions or even precise instructions for the perpetration of specific crimes? As Waters shows, the trial did not provide a clear or definitive answer to these questions, which are of both legal and historical importance.
But the ICTY’s indeterminate silence in the Milošević trial does not mean that these questions cannot be answered, because although Milošević was tried alone, the theory on which he stood trial was not unique to him. If there was a JCE, as the Prosecution alleged, then by definition it included others as associates or co-perpetrators. In the course of his trial, the Prosecution explained how Milošević worked in concert with or through these individuals, who shared his intent to achieve their JCE. And, in fact, most of his alleged main associates or co-perpetrators have been indicted by the ICTY. Thus there was an opportunity to consider the complicity and responsibility of Milošević, even after his trial: If, following their own trials, these co-perpetrators are found guilty as members of the same joint JCE, then—indirectly, informally—we may know that Milošević was too.
This then was the opportunity and the challenge that confronted the Prosecution after the death of Milošević: Without a judgment, the strong evidence led against Milošević could only be vindicated in the trials of other members of the JCE. So, how did the Prosecution respond?
Since the death of Milošević, several new trials touching the heart of his regime have begun at the ICTY. They involve principal members of Serbia’s or the FRY’s state apparatus involved in the same JCE alleged against Milošević,* and mostly build on evidence that was also introduced in the Milošević trial. In these cases, the Prosecution has followed two different paths. In the case against senior Serbian officials active in Kosovo, the Prosecution used the full evidentiary legacy of the Milošević case and obtained guilty verdicts for most of the individuals originally charged alongside Milošević.2
Similarly, the judgments rendered against members of the Croatian Serb leadership confirmed that there was indeed a common plan and direct links between the RSK leadership and the Belgrade authorities; they corroborate most of the Milošević Prosecution’s Croatia case and clearly suggest that Milošević was the JCE’s indisputable leader. These final judgments indirectly indicated Milošević’s criminal liability, suggesting the verdict that could have been issued had Milošević not died.3 Strengthened by these findings, in all subsequent cases involving crimes in Croatia committed by Milošević’s associates from the Serbian state apparatus, the Prosecution has stuck with the strategy and the evidence it had used in the Milošević case.
But in all Bosnia cases against Serbian or FRY officials, the Prosecution has departed from its original approach, instead dropping evidence or downplaying the role of key participants—including Milošević’s closest associates from Serbia. Some of these cases are still underway or on appeal, so it is too early to assess fully the impact of the ambiguous post-Milošević Prosecution strategy on the judges’ conclusions. However, the acquittal on appeal in February 2013 of Momčilo Perišić – the only Serbian or FRY senior official convicted and sentenced so far for crimes in Bosnia – already resonated as Milošević’s posthumous acquittal for Sarajevo and Srebrenica. The subsequent acquittal at the trial stage of Stanišić and Simatović has only reconfirmed this new narrative. The Prosecution may initially have brought Milošević to trial for being the main architect of ethnic cleansing in Bosnia, but it is unlikely that any remaining judgments will confirm this view, since the Prosecution no longer claims that Milošević’s closest associates were part of such an enterprise. And in any case, one result is clear: In different courtrooms the Prosecution is now presenting two different versions of the same events.
The so-called MOS trial, against six senior Serbian officials,* held special significance as the closest that an international criminal tribunal was likely to come to judging the actions of Milošević and Serbia in Kosovo. In the MOS trial, the Prosecution successfully demonstrated the very claim it had alleged during Milošević: that between January and June 1999, forces of the FRY and Serbia, acting at the direction of or with the support of Milošević, executed a campaign of terror by deporting or forcibly transferring a large part of the Kosovar Albanian population, and that they did this in order to change the ethnic balance in the province and ensure continued control by Serbian authorities over Kosovo. The February 2009 judgment, which returned convictions against five of the six, dismissed the argument used by Milošević during his trial: that civilians in Kosovo were fleeing the NATO bombing instead of the atrocities he stood accused of ordering. Instead, the Chamber found that none of the witnesses cited NATO bombing as a reason for their flight.4
A critical component of the MOS trial and judgment was the claim that the individuals on trial derived their power to commit crimes from their relationships to Milošević. The judges accepted the Prosecution’s argument that Milošević removed those who thought independently and replaced them with people who obeyed him blindly in order to implement the JCE in Kosovo. The MOS Trial Chamber issued longer prison sentences for those found to be the closest associates of Milošević, who is described in the judgment as the main architect of the JCE in Kosovo. Thus FRY Deputy Prime Minister Nikola Šainović, found to be “one of the closest and most trusted Milošević associates[,]” was sentenced to 22 years in prison.5 The Chamber noted that his “leading role” as a political coordinator of civilian and military activities in the province stemmed from his close relationship with Milošević.6
The different sentences awarded to the military officers show the centrality of Milošević. Nebojša Pavković, the former Commander of the Third Army of the VJ, was also given a 22-year sentence, while his nominal superior—Dragoljub Ojdanić, the former Chief of the General Staff—was given 15 years. The judges accepted evidence given during the trial by the former deputy chief of the military Kontraobaveštajna služba (Counterintelligence Service or KOS) Aleksandar Vaslijević, who said that Pavković often skipped over the chain of command and went directly to Milošević without Ojdanić’s knowledge and permission.7
Even its one acquittal—of Milan Milutinović, President of Serbia during the Kosovo war—reinforced the centrality of Milošević to the MOS judgment. The Chamber found that it was in fact “Milošević, sometimes termed the Supreme Commander, who exercised actual command authority” over Serbian troops and security police officers in 1999 rather than Milutinović.8 Only those who were closely trusted aides of Milošević or whom he allowed to wield effective power were convicted.
A similar strategy and outcome resulted in the Croatian Serb cases. In all cases involving Milošević’s associates in the JCE in Croatia, the Prosecution provided evidence—as it had in the Milošević trial—about the campaign of persecutions launched in 1991 against Croats and other non-Serbs and designed to forcibly remove them from the roughly one-third of Croatia that was to become part of a new Serb-dominated state. So far, the ICTY has issued judgments against several members of the Croatian Serb leadership, which confirm that there was indeed a common plan and direct links between senior figures in the RSK and the Belgrade authorities, under Milošević’s leadership. As with the MOS case, the judgments’ reading of the Prosecution’s evidence corroborate most of the Milošević Prosecution’s Croatia case, and clearly suggest that Milošević was not only the JCE’s prominent figure but its indisputable leader.
The first to be convicted was Milan Babić, the first RSK president from 1991 to 1992, who pled guilty to crimes against humanity as a co-perpetrator of the JCE and was sentenced to 13 years.9 Babić was a key prosecution witness in the Croatia phase, helping establish the link between Milošević and the crimes committed in Croatia. Babić testified that “the [parallel] structure of power and force in the SAO [Srpska automna oblast, Serbian Autonomous Oblast] Krajina” that eventually replaced him in 1992 was controlled by Milošević through Serbia’s MUP and the SDB leadership assigned to establish it. He claimed that Milošević wanted to conceal his true role and the ties between Serbia and Krajina in order for the JCE goals to succeed while making sure Serbia was not blamed for the war, the breakup of Yugoslavia, and the creation of a Greater Serbia. Babić’s testimony in Milošević in 2002—so damaging for Milošević at the time—was consistent with the basis of Babić’s own guilty plea.
The Martić judgment also confirmed part of the Milošević Prosecution case and notably the link between Belgrade and the RSK leadership. Milan Martić, who held various senior positions in the SAO Krajina and RSK between 1991 and 1995, and was sentenced in 2007 to 35 years for crimes against humanity,10 was also named as a co-perpetrator in the JCE led by Milošević. The judges noted that Martić had “close and direct” contacts with the other participants in the JCE, including Milošević, Karadzić, Mladić, Šešelj, Stanišić and Simatović, and Dragan Vasiljković (Captain Dragan) that resulted in substantial financial, logistic, and military support by the JNA and VJ as well as the Serbian MUP and SDB.11 Noting that support came from Serbia throughout the period of the war, the judgment quoted a witness who had described the SVK and the VJ as “as one and the same organization, only located at two separate locations.”12
Thus, in the cases completed so far that address Croatia and Kosovo, the Prosecution continued with theories and evidentiary strategies consistent with the argument it had advanced in the Croatia and Kosovo phases of Milošević. The Prosecution pursued the logic of its own principal case; the result has been, not only convictions of the other members of the JCE, but an indirect vindication of Milošević—an indirect characterization of Milošević’s role and responsibility.
But these are neither the only cases, nor the only conflicts Milošević and his JCE reached. In its trials on Bosnia, the Prosecution has abandoned the logic and the legacy of Milošević.
Jovica Stanišić, Franko Simatović, and the recently acquitted Momčilo Perišić are the only Belgrade regime officials other than Milošević indicted by the ICTY for crimes committed in both Croatia and Bosnia. In addition, Milošević’s hard-line nationalist ally in Serbia, Vojislav Šešelj, who coparticipated in the JCE as the leader of the SRS, is also in the dock for plotting to murder, torture, and illegally imprison non-Serbs in Croatia, Bosnia, and Vojvodina. In the Croatia part of these cases, the Prosecution has stuck to its earlier strategy according to which it attempted to establish Milošević’s criminal liability through Stanišić, Simatović, Šešelj, and other JCE core members. But in the Bosnia part, the Prosecution has radically departed from its approach in Milošević, depriving the public and the victims of a new opportunity to determine, at least indirectly, Milošević’s responsibility in the longest and bloodiest part of his overall criminal plan.
At the first sight, the Prosecution case against Jovica Stanišić and Franko Simatović overlapped with the Milošević case and its JCE theory. Senior trial attorney Dermot Groome, who was in charge of the Bosnia phase, identified the two former Serbian security chiefs as key participants in the “struggle for the achievement of the common goal of all Serb lands[,]” using Stanišić’s own words in a telegram from 1994.13
The indictment charged Stanišić, Chief of Serbia’s SDB, and his deputy Simatović, head of the SDB’s special operations units, with responsibility for organizing, training, financing, and controlling the members of special SDB units that terrorized, expelled, and killed thousands of non-Serbs between May 1991 and December 1995.14 Their trial began in April 2008, two years after Milošević ended. According to the Prosecution’s case,* Stanišić—once considered the second most powerful official in Serbia—established a group of elite forces designed for secret operations outside Serbia, the JSO or Crvene Beretke; these forces acted under Simatović’s operational command. Stanišić and Simatović supposedly acted on direct orders from Milošević, who trusted his secret police and their covert fighting force more than the formal military; in fact, the covert units were designed to shield the Serbian government and military from liability for some of the most brutal campaigns against civilians outside Serbia.
Stanišić and Simatović’s bloody crimes in Croatia and Bosnia had already been partially mapped in Milošević—quite literally, as could be seen in a video of SDB covert special forces’ sixth anniversary ceremony at their headquarters in Kula, Serbia in May 1997, which they celebrated in Milošević’s presence. Shown in the Milošević trial, the Kula video was one of the most compelling documents to have surfaced during the case: Standing in front of a marked map of the former Yugoslavia with all the places where the Crvene Beretke had fought in Croatia and Bosnia, Jovica Stanišić addressed Milošević, saying “all we have done was done on your orders.”15 The prosecutors in Stanišić & Simatović promised to establish that a number of other violent paramilitary groups—Arkan’s Tigrovi (Tigers), the Škorpioni, Frenki’s men, Captain Dragan’s Kninjas, Martić’s men, Šešelj’s men—were not rogue bands of criminals or volunteers, but well-trained, well-equipped, and well-paid fighters connected with or even part of Serbia’s secret police. Milošević’s links to the leaders of these, among the most violent groups in the Bosnian war, were personal and unmediated.
Stanišić & Simatović was also a case in which almost all the participants of the JCE converged: the Serbian, Croatian Serb, and Bosnian Serb leaderships and the militia commanders. As the prosecutors said during his trial, Milošević planned, instigated, and committed the crimes through Stanišić, Simatović, and other participants in the JCE. Stanišić & Simatović was in many ways the continuation of the Milošević trial, with the potential to confirm Milošević’s role as chief architect of the bloodshed both in Bosnia and Croatia and to bring to light the parallel system he created to wage wars and carve a homogeneous Serb state out of Yugoslavia.
Yet although Stanišić & Simatović shared so much, logically and evidentiarily, with Milošević, the Prosecution dramatically departed from the legacy of the Milošević Bosnia case. There the Prosecution attempted to establish Milošević’s criminal liability for genocide through Stanišić and Simatović, due to their knowledge about and authority over the SDB units actually engaged in genocidal acts. But later, in their own trial, the Prosecution minimized Stanišić’s and Simatović’s states of knowledge and their key role in the overall JCE, including in the Srebrenica genocide. Although additional evidence supporting its earlier theory has emerged since the end of Milošević, the Prosecution adopted a new strategy that so seriously contradicts its Milošević case that had the Prosecution followed its current strategy then, it would have had to drop the genocide charges against Milošević.
The two trials characterized Stanišić and Simatović’s involvement in the events at Srebrenica—the only juridically confirmed act of genocide in the Yugoslav wars—in radically different terms, and in the process foregoing an explanation of Milošević’s involvement. In summer 1995, SDB units deployed in eastern Bosnia to assist the final offensive against the enclaves near Serbia’s borders, aimed at eradicating the last remaining Muslim populations. One of these units, the Škorpioni, executed at Trnovo at least six Muslim men and boys captured in Srebrenica—actions later made notorious in another much publicized video played in the Milošević trial. These SDB deployments were designed to aid the VRS attack on the enclaves of Srebrenica and Žepa by keeping pressure on the ARBiH near Sarajevo;16 their participation was therefore related to the implementation of the JCE. This was, in fact, how these acts were characterized in Milošević and in the Stanišić & Simatović indictment as amended in December 2005 to include this new evidence.
Yet despite the compelling new videotaped evidence, the Prosecution did not amend the indictment to include genocide. Instead, Stanišić and Simatović were charged with murders (as crimes against humanity) in relation to the killings at Trnovo. Then in May 2006, two months after the Milošević trial ended, the Prosecution revised the Stanišić & Simatović indictment once more, dropping 10 paragraphs that had described in detail the participation of SDB forces in the capture of Srebrenica and the subsequent killings of over seven thousand male prisoners.17 In a single stroke, the Škorpioni killings became a separate incident from the Srebrenica genocide, committed with no specific genocidal intent—the very same killings that the Prosecution had argued in the Milošević case were part of the genocide at Srebrenica.18
Ironically, it was principally through Stanišić and Simatović that the Prosecution had attempted to demonstrate Milošević’s liability for genocide in Srebrenica and elsewhere in Bosnia, insisting that from 1991 to 1995 the two had provided channels of communication between and among the core members of the JCE in Belgrade, and had controlled and directed Serbia’s covert special forces in some of the most brutal campaigns against non-Serb civilians. The Prosecution also claimed during the Milošević trial that the SDB forces were conceived to be a driving force for genocide against non-Serbs.19 Prosecution evidence and witnesses in Milošević described Stanišić as Milošević’s executioner and protector: It was through Stanišić that Milošević exerted control over Mladić and Karadžić, and also controlled the Serbian SDB.20 Yet later, in his trial, Stanišić’s relationship to the events at Srebrenica evidently did not warrant charges, raising the logical question of how he could have provided the link sustaining the earlier attribution to Milošević.
Indeed, the charges compared across the two trials have never made sense. Stanišić & Simatović never included a charge of genocide, even though the indictment was issued and amended during the Milošević trial, whose theory of genocide relied on Milošević’s control over the VRS through its command structures filled by VJ officers and on Stanišić and Simatović’s active knowledge and participation in ordering the killings. Members of a JCE possessing the shared intent of forcibly transferring people from Srebrenica and killing them as a means to realize their common goal (or even sharing the intent of committing genocide) could each be held responsible for all reasonably foreseeable crimes committed as a consequence of their shared plan. If Milošević was able to foresee the risk of genocide, as the charges against him implied, logically so did Stanišić and Simatović, who were informing him of everything that occurred in the field. Indeed, the theory that Milošević foresaw a risk of genocide arising out of the actions of other JCE members presupposes at least some other members’ intentional perpetration of genocide.*
So far, the Prosecution has neither explained why it advanced one theory in Milošević and another in Stanišić & Simatović nor why it appears to have reshaped the facts surrounding Srebrenica to avoid expanding the charges to genocide after additional and compelling evidence had emerged. The Prosecution was not facing any request from the Trial Chamber to reduce the indictment or shorten the trial; the Chamber had even denied a Defense motion to dismiss the charges against Stanišić on medical grounds.21
It is possible that, in originally declining to pursue genocide charges, the Prosecution was simply responding to a forensic concern that it might not have enough evidence to demonstrate that Stanišić and Simatović had displayed genocidal intent. But as the genocide charge against Milošević relied on the mediation of his subordinates, it is hard to see why such a concern would not also have precluded the earlier genocide charge against him. Nor was the Prosecution’s original theory in Milošević obviously defective: At the midpoint of that trial, in the Rule 98 bis Decision that Waters and Nielsen discuss, the Chamber said there was potentially sufficient evidence to consider a genocide conviction against Milošević in Srebrenica and other municipalities. The 2004 Decision ordered the trial to continue, as the Prosecution had presented a sufficient case on which a reasonable trier of fact could be satisfied that genocide had occurred in Srebrenica and other municipalities.* Moreover, the Chamber accepted the plausibility of the claim that these were not separate criminal plans but were part of the same JCE22—one which the Prosecution asserted included Stanišić and Simatović. And once the Škorpioni Trnovo videotape was uncovered in 2005, the Prosecution insisted it was compelling evidence of Milosevic’s liability in the genocide, which makes the case for genocide charges against Stanišić and Simatović seem compelling.
Still, the Prosecution has in fact been ambivalent about the question of Belgrade officials’ liability in the genocide since the beginning. The Milošević Prosecution team had been divided on this very issue and considered seriously on several occasions dropping the charge of genocide together with the Srebrenica section, but their proposal was eventually rejected by Chief Prosecutor Del Ponte.23 However, when Stanišić and Simatović were originally indicted in 2003, the Prosecution chose not to charge them for genocide, on the grounds that there was not sufficient evidence to prove the direct participation of the Crvene Beretke or other covert Serbian MUP forces in the Srebrenica killings. But after the 2004 Milošević Chamber’s Rule 98 bis Decision and the Trnovo videotape that emerged the next year, the Prosecution’s concerns about its own genocide theory should have been put to rest. It remains therefore hard to understand why the Prosecution ignored Stanišić’s and Simatović’s links with the Srebrenica genocide when it amended the indictment in 2005 and again later on, and thus deviated from its Milošević strategy even while additional evidence showed it was actually through Stanišić and Simatović that Milošević’s participation in the shared plan to commit genocide could most easily be established.
Ultimately, the reasons behind the Prosecution’s “no-genocide” strategy in Stanišić & Simatović are unclear, but the consequences have been profound and comprehensive. All other deviations from the Prosecution’s strategy in Milošević have been the result of this choice, including the fact that the Prosecution now claims that there were not one but several separate JCEs, each with its own specific members. In its 2008 opening statement for Stanišić & Simatović, the Prosecution went even further by explaining that in respect to the Trnovo killings, the Škorpioni “were made available to Karadžić, Mladić and other core members of the joint criminal enterprise to perpetrate crimes in furtherance of their common criminal plan.”24 The Prosecution thus now suggests that although Milošević, Stanišić, and Simatović may have contributed to this specific plan by providing personnel, they did not share its intent or were aware of it, and indeed they were no longer named as members of the plan. This also means that the Prosecution no longer claims, as it did in Milošević and in the December 2005 indictment, that Stanišić and Simatović had effective control over the immediate perpetrators of the Trnovo killings, because at the time of the crimes the Škorpioni were at the disposal of the Bosnian Serb leadership advancing its own, separate criminal purpose in which Stanišić and Simatović were not participants and of which they were not aware. Had they followed their own logic from Milošević, prosecutors could have charged Stanišić and Simatović with genocide for these same acts; instead, they were left with charges of failing to prevent or punish murder under a theory of superior responsibility, as they inexplicably conceded that the Accused had neither any knowledge of the genocidal plan nor de facto authority over the Škorpioni at the time.
This approach suggests that the Prosecution is now treating the Srebrenica genocide as a parallel criminal plan developed separately from the overarching Milošević JCE and with a separate and specific intent—in this case, a genocidal one—not shared by Stanišić and Simatović. The Prosecution has thus attempted to prove both that Stanišić and Simatović exercised influence and control over the Bosnian Serb leadership and events in Bosnia—as part of Milošević—but later, as part of their own trial, that they did not, especially at the time of the Srebrenica genocide, and thus could not have even reasonably foreseen that the crimes to which they had contributed would escalate to genocide.
The Stanišić & Simatović trial was expected to help establish facts from the unfinished Milošević trial. It may have done so to some extent (and may still do on appeal), but it will not help resolve the most controversial issue that still divides experts and historians, and may even complicate it. Did Milošević and his key associates aid and abet, or were they complicit to genocide in Srebrenica? Did they even share a genocidal intent? The Stanišić & Simatović trial did not address these questions or test the available evidence. The strategy adopted by the Prosecution in their trial contradicts its earlier strategy, and thus withdraws from the enterprise of answering the questions posed during Milošević, and which, indeed, made that trial so important for the victims of Milošević’s wars.
The indictment against Momčilo Perišić, Chief of the Main Staff of the VJ from 1993 to 1998, also revealed serious inconsistencies and departures from Milošević. In particular, the Perišić trial reprised the ambivalence the Prosecution felt concerning Belgrade’s control over the VRS and that had earlier poisoned the Milošević trial. Although Perišić had far less power and authority than Milošević, his case revived debate within the Prosecution.*
As with Stanišić and Simatović, Momčilo Perišić was not indicted for genocide or for complicity. He was on trial for aiding and abetting crimes against humanity by providing, as Chief of the VJ Main Staff, substantial logistical and material support and personnel to the VRS for the shelling of Sarajevo and the genocide at Srebrenica, and for failing to take necessary and reasonable measures to prevent or punish VJ officers who were involved in these crimes.25
The case relied for the most part on evidence from Milošević, including the VSO transcripts. In his capacity as president of Serbia, Milošević was a member of the VSO, along with the president of the FRY and the president of Montenegro. It was at the VSO that state policy was formulated and important and critical political and military issues were debated. Perišić attended each meeting and acted within the policies and limits set by the VSO, in which Milošević played a predominant role.
As in the Milošević case, the decisions and minutes from the meetings of the VSO were used to establish Perišić’s role in the effort to establish a single state for all Serbs. At the opening of the trial,26 the Perišić Prosecution promised to “pierce the veil of Milošević’s elaborate deceptions”27 designed to convince the international community and the world that Serbia was not taking part in the war in Croatia and Bosnia. On the basis of evidence already used in Milošević, the Prosecution set out to show that Belgrade had control over the SVK and VRS forces through the successive VJ Chiefs of General Staff, including Perišić after 1993, and the VSO members, in particular Milošević.
The Prosecution theory and evidence showed that Perišić—and above him Milošević, through his dominant role in the VSO—had de jure superior authority over VJ officers, including those serving in the VRS and the SVK. In both of these armies, the commanders in chief, their main staff, the corps commanders, and corps command staff were VJ officers assigned through the 30th and 40th Personnel Centers of the VJ General Staff, which paid them and processed their administration. The VSO and Perišić were able to influence the behavior of their subordinates serving outside Serbia and, additionally, to ensure that VSO decisions were implemented in Bosnia. The Prosecution did not claim that the VSO or Perišić gave direct orders to VJ officers serving outside Serbia, only that they either acquiesced in or knowingly supported VRS and SVK criminal activities.28
Perišić’s liability for the crimes committed in Sarajevo was demonstrated in a way similar to what was done in the Milošević trial. But for Srebrenica, prosecutors chose a very different and inconsistent approach: Perišić was accused of bearing command responsibility for failing to prevent and investigate the “killings in Srebrenica,” which are said to have been planned, ordered, and committed or aided by VJ officers serving in the VRS.29 Although as early as 2004 the ICTY had definitively held that genocide occurred in Srebrenica and established that the VRS Main Staff had genocidal intent30—and has found several VJ officers serving in the VRS guilty of genocide or complicity of genocide*—the Prosecution in Perišić chose to qualify these killings as crimes against humanity committed “with the intent to discriminate against the Bosnian Muslim population of Srebrenica on political, racial or religious grounds[,]”31—not to refer to Srebrenica as genocide.
This was a strategic choice: Because it had called Srebrenica a crime against humanity, the Prosecution did not have to establish whether Perišić knew about his subordinates’ specific genocidal intent to destroy the able-bodied Bosnian Muslim men of Srebrenica as a group; instead, the Prosecution needed only to demonstrate Perišić’s awareness of the perpetrators’ more limited “discriminatory intent” to kill or expel the local Bosnian Muslims. But this was a choice that conceded too much: The Prosecution could have easily relied on prior ICTY jurisprudence to assert that genocide occurred at Srebrenica and still conceded that Perišić himself did not know about the perpetrators’ genocidal intent. It was therefore unnecessary to undermine the prior jurisprudence on the nature of the crimes committed after the fall of Srebrenica by describing these same “killings” as crimes against humanity rather than genocide.
This is the logic of the Krstić Judgment. On appeal, General Krstić, a VJ officer serving within the VRS as commander of the Drina Corps and whose subordinates participated in the genocide, was acquitted of genocide because he did not possess the specific intent required, but he was convicted for complicity.32 The Appeals Chamber explained that Krstić could not be convicted as a direct perpetrator because he was not part of the agreement among other officers to commit genocide; his knowledge of the executions and of the use of personnel and resources under his command was insufficient to support “the further inference of genocidal intent on his part.”33 Yet although Krstić was not a supporter of the genocidal plan, the judges found that he permitted the VRS Main Staff to employ Drina Corps resources even though he knew their genocidal intent, and found this sufficient to convict for complicity.
On the available evidence, a similar logic could have applied to Perišić: He had command authority over VJ officers in the VRS, some of whom were promoted at Perišić’s request after the genocide occurred;* he exerted command authority over those within the VRS Main staff who had the specific genocidal intent; he had a close relationship and direct channels of communication with General Mladić during and after the attack;† and he had knowledge of the genocide at least after the event and yet failed to take the necessary and reasonable measures to punish the crime. One protected witness even gave evidence that among the members of the forces who arrived in Srebrenica and Potočari at the beginning of the killings were members of the VJ Užice Corps—soldiers directly in the formal chain of command under Perišić.34
At trial in 2011, Perišić was found guilty on eight counts as an aider and abettor, and on four counts as a superior for failing to punish subordinates, for which he was sentenced to 27 years in prison.35 Perišić was initially acquitted only of extermination as a crime against humanity,36 on which the Tribunal was unwilling to convict because “the evidence presented [did] not lead to the only reasonable conclusion” that Perišić had effective control over the 30th PC or that Perišić had the requisite knowledge that the VRS intended to commit a crime on the scale of Srebrenica.37 This could suggest that had the Prosecution maintained the genocide charge as they had for Milošević, the charge would have been unsuccessful.
The Trial Chamber did establish that, in his capacity of Chief of the VJ General Staff, Perišić was indeed de jure the superior of the VJ officers serving through the 40th Personnel Center in the SVK and through the 30th PC in the VRS, including Mladić, the VRS main staff, and the commanders of the VRS Drina Corps and its brigades who committed or were involved in the genocide at Srebrenica.* The Chamber also established that the VJ, SVK, and VRS operated in an atmosphere of unity and acted toward a common goal.38 But although Perišić was found to have exercised effective control over the VJ officers serving in the SVK,39 the Chamber said that the same did not apply in regards to the VJ officer serving with the VRS, even though Perišić had a collaborative relationship with Mladić and substantially aided his operations.40 As a consequence, Perišić could not bear command responsibility for the crimes committed by his subordinates in Srebrenica. Although Perišić may not have had effective control or knowledge of the extermination, he was found to have had knowledge both of various crimes committed prior to the massacre and of the discriminatory intent of the VRS, shown though evidence of the actions of the international community, local media, and meetings between Milošević and Perišić.41 From the evidence presented, it might have been possible that others, including Milošević, had both knowledge and effective control and could have been successfully prosecuted. However, in light of Perišić’s acquittal by the Appeals Chamber on all counts including Sarajevo and Srebrenica, the Prosecution’s caution may appear vindicated, as it probably would not have been able to convince the judges of the validity of the genocide charges since the Appeals Chamber was not convinced of Perišić’s liability in Srebrenica even for a lesser offense. But such a conclusion fails to consider that the Prosecution’s inconsistent approach might have had an impact on the on the judges’s findings.
In Milošević, Perišić was named as a member of the JCE. Had the Prosecution followed the same path, it could have brought genocide charges against Perišić under a JCE III theory. But following the Prosecution’s decision to introduce a different legal qualification for the killings in Srebrenica—its choice not to mention the genocidal intent behind the killings—the Trial Chamber did not have to decide if Perišić knew of the principal perpetrators’ genocidal intent and made a substantial contribution to genocide, let alone if he possessed it himself. Had the killings of the able-bodied Bosnian Muslim men from Srebrenica been characterized as genocide as in other ICTY cases, the judges would have had, at the least, to consider Perišić’s complicity in genocide and his command responsibility for failing to punish the perpetrators; the Chamber would have been ruling on genocide rather than being restricted to crimes against humanity.† Of course, the other convictions themselves contribute to the historical record, but those individuals were serving in the VRS, whereas Perišić was at the top of the VJ command, answering to Milošević. His trial was thus an opportunity to consider the links from Srebrenica to Belgrade.
The result, then, is that another opportunity to explore Milošević’s responsibility, through the prism of his colleagues and subordinates’ responsibility, has been needlessly abandoned. In the Milošević trial, the Prosecution contended that Milošević had knowledge of the other JCE members’ genocidal intent, or even possessed the requisite intent himself, and that he exerted his influence and control over the VRS leadership directly and through the VJ Chief of Staff—through Perišić. The Prosecution also asserted that “high level meetings of the SDC and of the Serb and Bosnian Serb leadership following Srebrenica are critical in their demonstration of Milošević’s tacit approval of the atrocities.”42 Had the Perišić Prosecution used the legacy of the Milošević trial, evidence that Perišić was present at these meetings would have supported an inference of his knowledge of the others’ genocidal intent. This in turn would have also indirectly indicated Milošević’s responsibility as Perišić’s superior.
The Prosecution chose not to use against Perišić the very evidence it had relied on to show Milošević’s liability for genocide in Srebrenica, even though that evidence ran through the VJ and the VRS, and therefore through Perišić. This suggests a decision by the Prosecution not to address in any way Perišić’s potential liability for genocide even though he had been charged for all the same acts committed at Srebrenica, and even though more evidence indicating that the VJ and the VRS formed a single army had emerged since the Milošević trial:* Although in Milošević, the Prosecution’s case may have been weakened by lack of compelling evidence that Mladić and most of his officers were Belgrade’s subordinates, in Perišić the Prosecution felt strong enough to demonstrate that Mladić and the other 1800 VJ officers sent to serve within the VRS commanding structures were his (and therefore Milošević’s) de jure subordinates.
The Perišić case illustrated the Prosecution’s ambivalence, already noticeable in its approach in Milošević, toward the nature of the relations between the VRS and the VJ, which swung between theories of “assistance” and “leadership:” on the one hand, Perišić assisting a friendly neighboring army with substantial means, and on the other, Perišić exercising command authority over the VRS leadership and structures. But in Perišić, the Prosecution expanded its ambivalence by ignoring evidence in its possession or provided by its witnesses in court. It insisted that the VRS did not function as part of the VJ.43 Further, it characterized as assistance rather than instigation the fact that the decision to attack and take over Srebrenica was prepared in coordination with Perišić and the Užice Corps,44 with Karadžić signing directives prepared for him by Belgrade,† to create the façade that Belgrade was not giving the orders. Yet Perišić was not indicted for his participation in the planning and preparation of an operation without which genocide would not have been committed in Srebrenica or for directing his subordinates to engage in criminal activities. The Prosecution contended only that the Chief of the Main Staff of the VJ was required to exercise his authority and responsibility to prevent and punish these activities as crimes against humanity.
In the Perišić trial, the Prosecution advanced a much more restrictive theory about the military chain of command than it did in Milošević. The Prosecution’s delegation theory asserted that Perišić had superior authority and control to the extent that he had the material ability to prevent or punish offenses by VJ officers, but had no operational control over his subordinates in the VRS and the SVK. In other words, he assigned VJ officers, paid and promoted them, provided them with logistical assistance or training, and assisted them in the planning of unlawful shelling or attacks, but never gave them any implicit or explicit directions that led them to commit offenses; he had de facto delegated his operational control to the VRS commanders. It is not clear what this delegation means when the VRS commanders are themselves VJ officers, but in any case, the Prosecution’s view was that VJ officers within the VRS were primarily under the authority of Karadžić, who, in his capacity as president of the self-proclaimed Bosnian Serb state, was both de jure and de facto the VRS supreme commander.45
The Prosecution still preserved for Perišić a line of responsibility for the same officers; as prosecutor Mark Harmon reminded the Chamber in his opening statement: “If General Perišić was aware that his subordinates had committed crimes while serving in the VRS and he was aware that President Karadžić failed to sanction those offenders, General Perišić’s responsibility to do so was not extinguished because of Karadžić’s indifference or his inaction. General Perišić was obliged to take action against his VJ subordinates.”46 But the primary responsibility for those officers rests with Karadžić.
In many ways, the Perišić case seems to have been structured to simplify the Karadžić Prosecution’s case and to avoid conflicting evidence between them. It is indeed easier to demonstrate Karadžić’s liability as the only VRS supreme commander than as a commander whose authority was from time to time overshadowed by Belgrade’s leadership, exercised through Perišić, over Mladić and his Main Staff. If Belgrade proved to be the ultimate authority over Mladić and his closest associates, it would seriously harm the Karadžić case.*
But although this strategy helps avoid conflict with Karadžić, it does little to illuminate broader truths about the Yugoslav conflicts. The Perišić Prosecution’s theory of delegation of effective control—just like Stanišić’s and Simatović’s delegation in Trnovo—does nothing to explain Belgrade’s role: how and through whom the SDC decisions were being implemented in Bosnia, or to what degree Belgrade continued to exercise influence over its own VJ and MUP officers at Srebrenica. These questions were at the heart of the Prosecution’s case in Milošević and are of crucial importance for the historical record.
Although at the beginning of the Perišić case the Prosecution promised to lift up the veil of “Milošević’s elaborate deceptions” about Serbia’s part in the war in Bosnia, it disregarded evidence previously available to it, suggesting that Perišić and Milošević may have had much more authority over the VRS. There is plenty of evidence showing that Karadžić’s influence over the VJ officers serving in the VRS was sometimes very limited; the tensions between Karadžić and Mladić that began in 1993 and escalated into a conflict in 1995 were well documented in Milošević by witnesses’ testimony confirming that Mladić was not listening to Karadžić, and that in mid-1995 Karadžić was trying to impose his control over the VRS through non-VJ officers who were members of his party, the Srpska demokratska stranka (Serbian Democratic Party or SDS).
When viewed against the evidence from Milošević, the Perišić and Stanišić & Simatović trials appear built on a series of contradictions that will not help in the search for the truth. The Prosecution’s strategy appears to be aimed at accommodating evidence so that it matches its own surest theory in each case, instead of coordinating evidence across different trials. Even where the Prosecution has coordinated its approach, as with Perišić and Karadžć, it has done so to avoid damaging strategic contradiction, rather than to let the fullest and most truthful picture emerge—and it has largely abandoned any effort to describe Belgrade’s role in coherent terms. The Prosecution’s approach has resulted in fragmented narratives—contradictory theories about Belgrade’s “substantial support” or “leadership” in conceiving and carrying out the JCE—and therefore lost an opportunity to answer the question of what ultimately was Milosevic’s and Serbia’s responsibility.
The question we must consider is: Why would the Prosecution have done this?
The Prosecution’s strategic choices in the post-Milošević trials have had the effect of dissociating Serbian and FRY officials from the Srebrenica genocide—despite compelling evidence of the direct involvement of both VJ units and Serbia’s MUP—and thus minimizing the Milošević regime’s leadership role in and responsibility for crimes in Bosnia. This was not merely a technical decision; instead, these choices may well illustrate a politicization of the judicial process—an effort to influence the way evidence should be interpreted outside and beyond the courtroom.
Although the ICTY deals exclusively with individual responsibility, as Shany explains in his chapter, international crimes committed by high state officials can also be attributed to the state itself. After Milošević’s death, when trying the last officials of Milošević’s regime, the Prosecution has declined to reopen the issue of genocide. This may have reflected doubts about the prospects for conviction, but it also has had the effect of ensuring that the trials say nothing about the highly sensitive issue of Serbian state liability for the acts of its officials in the Srebrenica genocide. This choice, which can be seen as a political one, not only contradicted the Prosecution’s own earlier case against Milošević, but was entangled with the jurisprudence of another court.
During nearly the whole time that the Prosecution was investigating crimes in Bosnia, a parallel case was working its way through the ICJ, in which Bosnia accused the FRY, and later Serbia, of genocide. When the Milošević trial ended, the ICJ’s Bosnian Genocide case was still going on. In its judgment issued on 26 February 2007, the ICJ found that, although it had violated its obligation to prevent and punish agents of the RS who committed genocide at Srebrenica, Serbia had not itself committed genocide. The ICJ judges were not convinced either that the Škorpioni were in fact acting under Belgrade’s control or that the members of the VRS Main Staff who decided to kill the adult male population of the Muslim community in Srebrenica were under instructions from or effective control by Serbia.47 The ICJ ruling also held that Serbia could not be held responsible for complicity in genocide because it was not established “beyond any doubt” that the FRY authorities, at the time they were supplying aid and assistance to “the VRS leaders who decided upon and carried out those acts of genocide[,]” were “clearly aware that genocide was about to take place or was under way[.]”48 The ICJ based its decision on the information available to it, which included the decisions of the ICTY and its publicly available evidence, but not the full transcripts of the VSO meetings, a point that has generated considerable controversy since the judgment was rendered.*
The ICJ decision came down less than a year after Milošević’s death, and before any of the other cases of Belgrade leadership began. It seems, therefore, that the Prosecution confronted a dilemma, or at least an awkward decision: further trials of Belgrade leadership on genocide charges might, if successful, produce outcomes dramatically at variance with the decision in Bosnian Genocide, and in any event would rely on the VSO transcripts and other evidence presented in closed sessions that was not made available to the parties before the ICJ. Had any Serbian officials been convicted on genocide at the ICTY, Bosnia would have requested the reopening of its ICJ lawsuit and sought the evidence that had secured such a conviction.† The ICTY would have had then to decide, in the face of close and considerable scrutiny, whether to be an accomplice to hiding evidence or to disclose evidence that was provided by States under the condition of nondisclosure.
Thus in Perišić and Stanišić & Simatović, the Prosecution appears to have modified its earlier strategy at least partly in order to match its remaining cases with the ICJ findings, even though the ICTY and the ICJ do not have the same jurisdiction or the same rules of procedure and evidence. We cannot know the Prosecution’s rationale for avoiding all genocide charges in the subsequent Belgrade leadership trials—or even for failing to characterize Srebrenica as genocide—but one effect is clear: Serbia is not exposed through its agents to further state responsibility for genocide.
Nor is not only the Prosecution that seems to have undergone a shift since the Milošević case. The judges have also engaged in building a legacy that narrows or empties the legal concept of command responsibility in a way that may well contradict the very purpose of establishing international criminal jurisdiction: namely, that heads of state, government ministers, army commanders and other powerful figures should not escape accountability after engaging in mass violence. In November 2012, the Appeals Chamber in Gotovina & Markac set standards that would lessen restrictions on the use artillery in built-up areas. Then the Perišić Appeals Chamber set standards that would limit the legal risk to leaders who aid and abet allies or client forces by providing them with arms, ammunition or logistics that are used to commit crimes. Both of these appeals cases represent a shift away from robust efforts to link senior leaders to crimes in the field.
But although there may be prudential, political reasons for such a choice, it also has serious consequences, as it denies us all a definitive answer to a critical question: What was the role Milošević’s Serbia played in the destruction of Yugoslavia? At his trial, the judges acknowledged that there was plausible evidence that might have shown Milošević was an essential architect of a criminal enterprise to force non-Serbs out of Croatia, Bosnia, and Kosovo and create a homogenous Serb state. But what has remained today from that record? The Croatia and Kosovo parts of the Milošević trial have been confirmed and even expanded, but the record related to Bosnia—surely the most contested, the most fraught of these conflicts, and the place that has suffered the most during the war—has been confounded by mutually inconsistent theories.
This crucial question about Belgrade’s role in the crimes committed in Croatia and Bosnia—often wrongly perceived as designed to stigmatize Serbia—is of the utmost importance to understanding how the war happened, and what happened during and after the war. The ICTY trials have confirmed that mass violence was not spontaneous, but state-sponsored. These findings are crucial for the concerned societies to engage in reconciliation processes. But these difficult and painful processes may well be compromised by the confused messages emanating from The Hague. As Bieber’s chapter suggests, retributive justice cannot on its own reconcile postwar societies, but in the aftermath of state-sponsored mass violence, the postwar authorities need to distance themselves from the criminal politics of the past in order to secure a lasting peace, and the criminal law can help in this process. But to do so, it must tell a consistent and truthful story shaped by the evidence; reshaping history to dilute state responsibility may discourage postwar state authorities and elites from breaking decisively with the past, or even encourage them to continue these politics through different means, preventing stability and reconciliation.
Years after its termination, the Milošević trial appears to have offered the most comprehensive picture of the broad Belgrade-centered criminal enterprise that will ever be presented at the Tribunal. Since that trial ended, the Prosecution has deviated from the theory of its own flagship case: Evidence has been disregarded, and new evidence that should have strengthened the Milošević legacy was instead deployed to revise it downward. The absence of a subsequent judicial ruling on some of the most important questions raised by the Prosecution in the Milošević trial leaves now an even more bitter taste in the mouth; the feeling of an unfinished business has grown stronger among the victims who now suggest that “justice has died with Milošević.”49
Milošević’s death deprived the public and the victims of a judgment, but it was not he who killed the trial and the search of the truth. Trying Milošević as a head of state for a state-sponsored criminal enterprise necessarily raised the issue of state responsibility; the trial of his closest associates in that regime contained an identical risk. The Milošević legacy may have been laid aside in order to avoid reopening the issue of Serbia’s state responsibility for the Srebrenica genocide—but whatever the reason, the victims were deprived of a fuller truth about some of the most sensitive and controversial episodes of the conflict. Justice, when dealing with war crimes, is expected to contribute to an indisputable historical record aimed at helping communities come to terms with their recent history. The evidence brought before the ICTY in Milošević and its progeny was supposed to help shape how future generations assess the Yugoslav wars and Serbia’s role in them. But when politics infiltrates the judicial processes or enters the courtroom, there are no more indisputable records. The reconciliation process will be affected because the concept of reconciliation can only go hand in hand with the concept of truth.
Milošević and the subsequent trials against his regime’s officials and allies have shed light on the overall structures that led to three wars in the former Yugoslavia, but secrecy still covers much of the wars’ events and their logic. The superposition of different structures designed to hide the fact that Serbia was involved in the conflict and in the crimes committed to create an all-Serb state still must be scrutinized in order to establish if the JCE was carried out by a deeply decentralized leadership, as the Prosecution now contends, or if the delegation of powers in the field was a deception meant to obscure Belgrade’s ultimate responsibility, as the same Prosecution asserted during the Milošević trial. It is already obvious that the ICTY will close down without giving an answer to these questions. The Milošević trial had attempted to address these issues; deprived of a judgment, the victims and the world were expecting subsequent related trials to offer part of the answers. But at the end, the Prosecution’s contradictions and its restrictive post-Milošević theory about the chain of command, coupled with the reductionist legal criteria on individual command liability the Appeal Chambers now applies, means the ICTY’s jurisprudence as a whole is arriving at the conclusion, in line with the ICJ, that Serbia under Milošević and his top associates played no essential role in the criminal enterprise to force non-Serbs out of Croatia and Bosnia in order to create a homogenous Serb state.
Twenty years after the UN Security Council unanimously established it, the ICTY has failed to become the leading institution in the desperately needed fight not only against impunity but against the collectivization of guilt. Or rather, it has been instrumental in attributing responsibility for the appalling crimes perpetrated in the former Yugoslavia to the wrong kinds of individuals: Instead of focusing attention on those who masterminded mass violence far from the battlefield, the ICTY has turned into the leading tool to promote narrow standards of liability that shift guilt away from the leaders operating far removed from the crime base, and back onto people who made no decisions but carried out plans developed by others. This is surely in part a consequence of the Prosecution’s strategic choices: With the theories it chose to advance, and their contradictions, the Prosecution not only failed to secure a conviction in several important cases, but more critically, it cannot explain how all of the cases should have fit together, how all of them could have been true. In the successor cases to Milošević, the Prosecution seemed more interested in securing convictions–though it has hardly succeeded in that—than in lifting the veil of deception. The Prosecution has failed to take this opportunity: It has abdicated the legacy of the Milošević trial.