Will Milosevic Get His?

By Johanna McGeary With Reporting by Lauren Comiteau/the Hague, Matthew Cooper/Washington and Andrew Purvis/Belgrade

When case IT-02-54 is finally heard at the International War Crimes Tribunal in the Hague this week, it will mark a moment many despaired would never come. The Serb strongman and former President of Yugoslavia who presided over a decade of mass murder and mayhem across the Balkans seemed untouchable for so long, and then became almost forgotten as the world's attention fixed on a new global villain. Yet Slobodan Milosevic will now have to sit each day in a well-lit U.N. courtroom, flanked by two guards, to answer to charges of crimes against humanity--even if he does remain as defiant as ever.

Normal trials follow a prescribed, orderly path. But no one knows what to expect in this one on the last great crimes of the 20th century--a test case for international justice, the first trial of a head of state. The prosecution must convict Milosevic not just in the eyes of three sitting judges but in the court of world opinion. Yet never has the Hague tried a defendant so uncooperative. Milosevic seems determined to make the proceedings a spectacle of courtroom subversion, refusing to recognize the tribunal, refusing to enter a plea, refusing to select defense lawyers, refusing even to wear headphones to hear the proceedings in Serbian.

In every pretrial appearance, Milosevic has responded with political diatribes. He has labeled the charges against him "absurd" and "monstrous," the prosecutor a NATO mouthpiece, the court a "retarded 7-year-old." He has called himself a peacemaker who is on trial to cover up NATO aggression against a sovereign country. The rants have led the presiding judge, Richard May, to cut off Milosevic's microphone. Milosevic has dropped hints that he might stage a grand scene by calling a parade of Western leaders to testify, starting with former President Bill Clinton and British Prime Minister Tony Blair. It will be up to the three judges, who also constitute the jury--Britain's brisk, outspoken May, Jamaica's scholarly Patrick Robinson and South Korea's quiet O-Gon Kwon--to make sure the whole thing doesn't descend into farce.

THE CHARGES

It's worth remembering that for all his destructive desires, Osama bin Laden hasn't accomplished crimes anywhere near as dastardly as those of which Milosevic is accused. From Sept. 21, 1991, when Serb paramilitary shot 11 Croat civilians in Dalj and buried their bodies in a mass grave, to May 25, 1999, when, during the forced evacuation of the Kosovo village of Dubrava, Serb forces killed eight ethnic Albanians, the former President is charged with responsibility for crimes that resulted in the deaths of 300,000 non-Serbs and the expulsion of millions from their homelands.

In the legal terms of the three indictments, that adds up to 66 counts of genocide, crimes against humanity, violations of the rules of war and grave breaches of the Geneva Convention during the decade of wars in Croatia, Bosnia and Kosovo. In common parlance, the 159 pages of charges catalog a shattering litany of persecution, extermination, murder, torture, inhumane acts, wanton destruction, deportation and forcible transfer. The indictments accuse Milosevic, as the "dominant political figure" in Serbia, of orchestrating a "joint criminal enterprise" to cleanse non-Serbs from vast swaths of territory to leave an ethnically pure nation.

There is only one formal count of genocide--in Bosnia: it's the gravest offense on the war-crimes books but the hardest to prove. Prosecutors must show that Milosevic knowingly intended to wipe out ethnic or religious groups--Bosnia's Croats and Muslims. "Unless you've got an accused saying, 'Yes, I had the intent, and I had the ability to do it,'" says deputy prosecutor Graham Blewitt, "you can only submit evidence that will enable the judges to infer that's what was in the accused's mind." Most of the charges fit under the less demanding "crimes against humanity" statutes. The maximum sentence is the same for all the charges: life in prison.

Originally, the jurists in Trial Chamber III wanted to try Milosevic first on the Kosovo campaign and later for Bosnia and Croatia. But an appeals court two weeks ago accepted chief prosecutor Carla Del Ponte's argument that all three were part of "one strategy, one scheme" and that witnesses, once revealed, might be intimidated not to appear again. So there will be one trial, expected to conclude within two years.

THE PROSECUTORS' STRATEGY

They have a lot going for them. The tribunal's acquittal rate so far is very low. Years of investigation have turned up hundreds of witnesses and loads of exhibits that go far beyond circumstantial constructs. Investigators were able to fish for more after Milosevic's regime fell in October 2000 and the new government let them inside Yugoslavia for the first time. Though the investigators complain they got more obstruction than cooperation, especially from the military, no one could cover up one incriminating new find: the bodies of Kosovo Albanian victims listed in one indictment were unearthed in mass graves near Belgrade last year.

The prosecuting team also has the Swiss-born Del Ponte, who is one tough lawyer. The Cosa Nostra mobsters whom Del Ponte, as Switzerland's attorney general, pursued on money-laundering charges tried to blow her up; the banker gnomes in Zurich whose secrecy she penetrated trembled before her. No matter what stunts Milosevic pulls, says Richard Dicker, director of the International Justice Program at Human Rights Watch, "she is not going to be sidetracked or tripped up."

The trick is to prove the leader of a nation is the intellectual author of crimes even if he did not literally have blood on his hands. The testimony from some 50 victims is likely to be compelling. But the most damning words may well come from the "insiders": an estimated 20 high-level political and security bosses with firsthand knowledge of what Milosevic said and did. What Del Ponte needs to prove is Milosevic's "superior authority": that he exercised control over the perpetrators of atrocities, knew or had reason to know crimes were being committed and did nothing to stop them or punish anyone. Prosecutors won't name these key witnesses yet, to protect them and encourage their appearance.

THE DEFENSE'S STRATEGY

Who knows? Since the day last June when Milosevic was shut behind the thick red doors of a 10-ft. by 17-ft. cell in a U.N. prison near the sea, he has acted as if the trial was not happening. Every morning, he reportedly dons a sharp suit and tie to greet his fellow inmates. "Good morning, comrades," says Milosevic. "Good morning, Mr. President," comes the reply. Assorted lawyers pay him visits, but he has hired none to defend him. He confers most with his adoring, equally defiant wife Mirjana, who visits occasionally and phones every day.

Even if he has to be carried by guards to his chair behind the empty table reserved for defense lawyers, Milosevic will be at the trial. He will get equal time to make an opening statement. If past appearances offer any clue, he will claim he was just defending his country, just fighting terrorists like the U.S. is now, just suffering from NATO aggression. He will force the court to broadcast, as it has before, Serbian translation of the testimony from a loudspeaker. He will look bored, yawn, stare impatiently at his watch when prosecutors speak.

The tribunal has named "amicus" attorneys--friends of the court--for Milosevic, to challenge evidence and offer exculpatory facts, even if he won't. If he tries to put NATO on trial as an unlawful aggressor by calling world leaders as witnesses, they would probably refuse to appear. Only the judges could legally summon them.

If the Serb leader presents no legal defense, prosecutors believe they can make a swift case for conviction that is able to withstand appeal. But that would present its own problem. "It will be difficult to explain the lack of adversarial picture that people expect in court," says Dicker. "For that reason, it poses a real challenge to the judges: that the trial be fair to Mr. Milosevic and be seen as being fair." For the credibility of the tribunal, that is key. More than anything, the trial and its verdict need to convince the world's victims and villains alike that in the end, justice can be done.

--With reporting by Lauren Comiteau/the Hague, Matthew Cooper/Washington and Andrew Purvis/Belgrade