Milosevic continues to tackle Croatia - a lot of explanation, but little hard rebuttal

Here in The Hague, the case of Bosnia v. Yugoslavia (Serbia and Montenegro) has entered the oral pleadings phase before a standing room audience at the International Court of Justice, but down the street, Croatia continues to be in the spotlight (or in the case of Mrksic et al. behind the curtain) at the ICTY.  The trial of the Vukovar Three is currently sitting in closed session this week due to the testimony on highly sensitive subject matter.  Former Serbian Krajina breakaway leader Milan Babic is slated to continue his testimony under cross-examination in the Milan Martic case on Thursday and in the Milosevic case, Babic’s testimony given three years ago for the Prosecution came under fire as former Republic of the Serbian Krajina (RSK) foreign minister Slobodan Jarcevic took the stand.

Jarcevic was brought on, in part, to rebut the evidence given by Milan Babic who testified that Milosevic created “parallel structures” within the RSK ultimately answerable to Milosevic that were designed to manufacture incidents to provoke fear amongst Serbs, intensify Croat responses and spiral into full-blown secessionist war.

Jarcevic disputed these claims calling Babic’s testimony “sheer nonsense.”   Jarcevic, who claimed that he himself survived an “Ustasha” pogrom as a child during World War II insisted that Croatia was hell-bent on wiping out the Serb population in the Republic at the beginning of 1990s and that the actions of Serbs living there in taking up arms against Croatian tyranny were so completely and obviously the local reaction to this and not engineered by Belgrade

Jarcevic dismissed Babic’s accusations that Milosevic used the JNA to intervene in Croatia under the pretense of separating the warring parties or de-blocking garrisons in order to pursue his policies seeking a “greater Serbia.”  When Judge Robinson asked how Jarcevic might have been privy to the orders of JNA, he simply responded, like so many others of Slobodan Milosevic’s witnesses that it was a matter of “logic and reasoning” that the JNA could not have been tasked by the Accused with the creation of a greater Serbia.  Jarcevic also noted that as foreign minister of the RSK, he was in a position to know about what activities the JNA was doing on the territory of the Serb Krajina but did not elaborate about specifics. 

Like many of Mr. Milosevic’s witnesses, Jarcevic played the role not of presenting hard first-hand, eyewitness evidence that would repudiate factual allegations made during the Prosecution’s case, but he was more of an “explainer” of events from an alternative perspective than that presented by the OTP.   For example, Milan Babic testified for the OTP that the RSK did not implement Vance peace plan provisions about the arming of police forces.  Jarcevic simply explained that police in the RSK “had to keep” long-barreled weapons (assault rifles) and not just revolvers in order to protect themselves against Croatian aggression.  Every country’s police force does so, he argued. 

There can always be alternative explanations to every factual allegation – the real question is whether Milosevic can muster credible witnesses to present those alternatives and whether he can bring documentary evidence to match.  In the case of Jarcevic, the Prosecution upon cross-examination was quick to elicit from the witness that although he was foreign minister for the RSK, he spent very little time in the territory of the RSK proper as his office was actually located in Belgrade.  This not only harmed Jarcevic’s credibility as an eyewitness, but also helped cement the link between the RSK policies and Belgrade.   As Prosecutor Hildegaard Uertz-Retzlaff noted, by virtue of his physical absence from events on the ground, “you cannot help us with matters related to the Serb TOs or the police in Serbian Krajina.”  Milosevic was quick to object and protect his witness – asking the bench to make Ms. Uertz-Retzlaff clarify what she meant by “help us” or “assist us” on the matters – a good lawyering technique when a witness answers “yes” or “no” to an awkwardly phrased question that could elicit the opposite response if asked differently.  Judge Robinson cut to the chase and asked Jarcevic whether he accepted the Prosecution’s contention that he had no first-hand, direct personal knowledge of many of the events on which he offered testimony to which he answered “yes” (i.e. he acknowledged that he in fact did not have any first hand knowledge).  This admission certainly did not help his credibility as a fact witness on the stand.

During cross-examination, the Prosecution raised several episodes pertaining to time periods outside the Croatia indictment which is focused on 1991-1992.  Assigned counsel Steven Kay picked up on this and objected, but the Prosecution explained that events outside the time period still were probative in demonstrating the type of influence the Accused had over the Krajina Serbs during the relevant period of the indictment.  The Prosecution has recently come under some degree of criticism from the bench for spending what the judges considered an excessive amount of time on cross-examination, thereby contributing to the lengthiness of the proceedings.

Last week Milosevic put on former Canadian Ambassador James Bissett who appeared, he said, to dispute widely-held beliefs that the Accused was responsible for the break-up of Yugoslavia when, in Bissett’s opinion, Milosevic was doing “all he [could] to keep Yugoslavia together as a state and to cooperate with the international community to put a stop to violence.”  While it would seem appealing for the defense to bring in a western diplomat from a NATO member-state to testify on behalf of the defense, Bissett’s overall contribution to Milosevic’s case was at best minimal. 

Bissett’s impressions as Canada’s last Ambassador to the former Yugoslavia appeared largely based on a reliance on taking the Accused at his word that he was trying to keep the country together and less so on concrete intelligence.  Bissett noted that he relied on what others in the diplomatic community also told him, although he was not specific.  During cross-examination, the prosecution focused on Bissett’s credibility, noting his criticism of the Tribunal itself which – which this observer believes is a largely ineffective method of reducing his believability.  Those who have been critical of the Tribunal – even as Bissett has been (in the extreme perhaps, comparing the Prosecutor to one of Hitler’s lawyers) can still bring fact-based observations to the stand.  Just because one doesn’t like the ICTY doesn’t mean they aren’t telling the truth, or that they are sincere in their beliefs.

Bissett was able to introduce several telegrams he sent from Belgrade, during his tenure as Ambassador - commending the constructive attitude of Milosevic towards peace efforts – again the import of this evidence is only that there was an alternate perception of what Milosevic was doing and the attitude the defendant projected; both Ambassador Bissett’s recollections on the stand and from contemporaneous documents evince more opinion than fact.