The Milošević trial: purpose and performance

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Notes

We wish to express our thanks to those who have assisted by reading, commenting, and indeed editing drafts of this article, which at one stage was on the way to being a short book. The most prominent of these are Tom Emmert, Charles Ingrao, Bob Donia, and Rachel Kerr. But we are also grateful for comments from members of the War Crimes Research Group at King's College London, Mark Davison, and Sasa Fatić.

James Gow, The Serbian Project and Its Adversaries: A Strategy of War Crimes (London: Hurst, 2003); James Gow and Ivan Zveržhanovski “Legitimacy and the Military Revisited: Civil–Military Relations and the Future of Yugoslavia,” in Anthony Forster, Tim Edmunds, and Andrew Cottey, eds, Soldiers and Societies in Post‐Communist Europe: Legitimacy and Change (London: Palgrave, 2003), pp. 203–218. As noted below, the Prosecutor argued that the cases against Miloševic regarding Kosovo, on the one hand, and Croatia and Bosnia, on the other, should be treated together because they constituted one armed conflict, albeit with geographical and temporal differences. This is a sensible view, given that no one would regard the war in different theatres of the Second World War at different stages as being separate wars.

In addition to our own work, cited already, those seeking further understanding of the war, might consult any of the following instances of what has become a voluminous literature. Sabrina Ramet, Balkan Babel, 4th edn (Boulder: Westview, 2002); Laura Silber and Allan Little, The Death of Yugoslavia (aka Yugoslavia: Death of a Nation), 2nd edn (London: Penguin, 1997); Christopher Bennett, Yugoslavia's Bloody Collapse (London: Hurst, 1992); Gow, Triumph of the Lack of Will: International Diplomacy and the Yugoslav Crisis (New York: Columbia University Press, 1997); Jan Willem Honig and Norbert Both, Srebrenica: Record of a War Crime (London: Penguin, 1996); Louis Sell, Milošević and the Destruction of Yugoslavia (Durham, NC: Duke University Press, 2002).

On the creation of the Tribunal and discussion of its purposes at the legal–political boundary, see the excellent volume by Rachel Kerr, The International Criminal Tribunal for the Former Yugoslavia: A Study in Law, Politics and Diplomacy (Oxford: Oxford University Press, 2004).

On the peace through justice argument see Aurélien J. Colson, “The Logic of Peace and the Logic of Justice,” International Relations, Vol. 15, No. 1, 2000, pp. 51–62.

The same is implicitly understood to apply to the equivalent IMT at Tokyo for war crimes in the Far East, although the latter is often overlooked in discourse on the benefits of international trials for transitional justice. However, there are significant differences in the records of the IMTs. Although both entail questions of “victors' justice” generally, as well as weaknesses of process, the criticisms that can be raised are more significant regarding Tokyo than Nuremberg. The Nuremberg legacy as transformative certainly does not apply in the Far Eastern context, where the trials were almost entirely ignored by Japanese society, including scholars, for the first forty years after the end of that war.

See Kerr, International Criminal Tribunal.

The International Military Tribunal statutes allowed for what would be deemed “hearsay” at criminal hearings, such as that in The Hague, which aspires to operate at the highest standards of criminal justice. This meant that allegations or assertions by those claiming to know would be accepted at Nuremberg but would be rejected by the ICTY.

On the problems of establishing subject matter jurisdiction, see Gow, Serbian Project, Chapter 1. Among the issues that could affect the Milošević trial is that of internationality, given grey areas regarding both the internal or international status of the conflict and also the Serbian leader's formal status regarding the parties to the conflict.

As already indicated, in note 1, our understanding is that there was one continuous war with different theatres, with Belgrade at the core of that war.

Judge Richard May died on 1 July 2004.

Prosecutor v. Slobodan Milošević, IT‐01‐50‐I

Prosecutor v. Slobodan Milošević, IT‐01‐51‐I

Members of the U.S. negotiating team to the ICC negotiations in Rome have confirmed to Gow that when the U.S. found itself in a position where it was unable to sign the Rome Treaty creating the International Criminal Court, the approach was then one of “wait and see,” regarding prosecutorial performance. This meant that future decisions were to be gauged against U.S. judgements regarding the “reliability” of international prosecutors.

Our assumption here is that a competent prosecution case, producing clear evidence to support the allegations against Milošević and others, could have a positive influence on Serbia—that is, a recognition of and coming to terms with the past. We do not presume that the population of Serbia, including its political and media elite, are incapable of recognising clear empirical evidence and of dealing with that evidence over time. While strong resistance to international initiatives is all that could be expected following years of externally imposed economic sanctions and the 1999 NATO bombing campaign, this does not necessarily equate to a reluctance to recognise the wrongs of the Serbian authorities and of some Serbian citizens. The indictment of the Prosecutor's performance is to have had a retrograde impact in this context. A convincing case, in contrast, would have fostered balanced awareness of war crimes issues and might have assisted in reform. Of course, we recognise that the Tribunal is one factor among many that affect the political scene in Serbia. However, it is a salient factor, with an identifiable impact.

IWPR Tribunal Update, No. 258, 2002.

The Independent, 20 February 2002.

Vreme, 21 February 2002; NIN, 21 February 2002.

The Independent, 21 February 2002.

Vreme, 1 August 2004.

While there can be no doubt that establishing that the alleged crimes had occurred was essential to the prosecution case, the more important demand on the Prosecutor was to demonstrate the connection of the accused to the crimes. Thus, taking time to confirm repeatedly that which had already been established, seemingly because witnesses were available, did not appear to be the best use of the court time available for making the prosecution case.

Reporter, 9 April 2002.

New York Times, 24 July 2002.

New York Times, 27 July 2002.

Vreme, 9 May 2002.

New York Times, 26 August 2002.

Vreme, 13 June 2002.

See Gow, Serbian Project.

IWPR Tribunal Update, No. 39, 2003.

Kerr, International Criminal Tribunal for the Former Yugoslavia.

For explanation concerning these and other armed forces contributing to the Serbian project, see Gow, Serbian Project, Chapter 3.

Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (9 September 2003), ⟨http://www.un.org/icty/transe54/030909ED.htm⟩.

“Arkan” was the nom de guerre of Željko Ražnatović, founder and leader of the Serbian Volunteer Guard (SDG), also know as “the Tigers,” a paramilitary force established with the cooperation of the Serbian Security Service and elements in the Belgrade military. See Gow, Serbian Project.

Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (2 December 2003), ⟨http://www.un.org/icty/transe54/031203ED.htm⟩; IWPR Tribunal Update, No. 337, 2003.

Babić first appeared as witness C‐036, but as many observers at the trial guessed his identity, the court gave him a new witness number, C‐061. As protected identity meant that most of his testimony was in closed session, Babić subsequently decided to reveal his identity to be able to respond to Miloševic's cross‐examination in a public session.

IWPR Tribunal Update, No. 290, 2002; IWPR Tribunal Update, No. 292, 2002; Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (18 November 2002 to 3 December 2002), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩.

Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (5–13 February 2003), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩; IWPR Tribunal Update, No. 300, 2003.

Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (17 June 2003), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩; IWPR Tribunal Update, No. 317, 2003.

Gow, Serbian Project, p. 188.

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (8 October 2003), ⟨http://www.un.org/icty/transe54/031008ED.htm⟩.

Borisav Jović, Poslednji Dani SFRJ: Izvodi iz Dnevnika (Belgrade: Politika, 1994).

Veljko Kadijević, Moje Vidjenje Raspada (Belgrade: Politika, 1993).

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (18–20 November 2003), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩.

IWPR Tribunal Update, No. 287, 2002.

IWPR Tribunal Update, No. 330, 2003.

For example, witness K‐2 (9 January 2003); witness C‐17 (11 June 2003); Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts, ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩.

For example, witness B‐1709 gave an account of an elaborate operation involving the army, the security service, and an organisation formed to provide humanitarian aid, and aimed at transferring army weapons to Bosnian Serbs. Witness C‐013 (27 January 2003) testified on the delivery of weapons from Serbia to Croatian Serbs with the help of state institutions. Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (27 January 2003), ⟨http://www.un.org/icty/transe54/030127ED.htm⟩.

For example, witness B‐127 (22 July 2003); Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts, ⟨http://www.un.org/icty/transe54/030722ED.htm⟩.

IWPR Tribunal Update, No. 309, 2003.

IWPR Tribunal Update, No. 328, 2003.

See Lord David Owen's testimony; Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (3–4 November 2003), ⟨http://www.un.org/icty/transe54/031104ED.htm⟩.

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (15–16 December 2003), ⟨http://www.un.org/icty/transe54/031215ED.htm⟩.

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (10–11 April 2003), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩.

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (28 January 2004), ⟨http://www.un.org/icty/transe54/040128ED.htm⟩.

Prosecutor v. Duško Tadić, IT‐94‐1.

Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (23 October 2003), ⟨http://www.un.org/icty/transe54/031023ED.htm⟩.

Stipe Mesić, Kako Je Srušena Jugoslavija (Zagreb: Globus, 1994) was originally published as Kako Smo Srušili Jugoslaviju (Zagreb: Globus, 1993)—the original title meaning “How We Destroyed Yugoslavia” and the later title more passively meaning “How Yugoslavia Was Destroyed.”

See Prosecutor v. Slobodan Milošević, IT‐02‐54, case transcripts (1–2 October 2004), ⟨http://www.un.org/icty/transe54/021001IT.htm⟩,

See Prosecutor v. Slobodan Milošević, IT‐02‐54 case transcripts (21–22 January 2004), ⟨http://www.un.org/icty/cases/indictindex‐e.htm⟩.

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Notes on contributors

James Gow