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Missing the Point in The Hague

Since the beginning of the trial of Slobodan Milosevic, the Yugoslav media have been flooded with praise for Milosevic's defense. If you were relying on this commentary alone, you would have to conclude that Milosevic is getting the better of the tribunal prosecutors.

In fact, while the media are wowed by Milosevic's spririted defense, they are missing the real story unfolding in the Hague - a detailed account of specific criminal acts committed in Kosovo. Milosevic's response-while perhaps politically and historically interesting, distracting, and entertaining-has been to a great extent legally irrelevant to the charges he faces.

Take last week's testimony and cross-examination of Bajram Bucaliu from the village of Staro Selo as an example. Bucaliu testified that on April 5, 1999 a group of paramilitaries entered the village and for the next week terrorized its population. The paramilitaries forced the villagers to dig trenches; they took away their vehicles and money; and, threatened that the villagers would be used as human shields should NATO soldiers invade the country. On April 13, according to the witness, the paramilitaries killed three villagers and kidnapped four more, whose bodies were found only after the war. That was too much for the villagers, and in the morning after the killing, all of them fled the village for Urosevac, where they boarded a train for Macedonia.

Milosevic did not seriously refute any of these claims. As part of his general defense strategy to show that the Albanians were actually fleeing the NATO bombardment, Milosevic asked about NATO bombs that exploded in the village. The witness answered that the bombing took place only after the villagers had fled and that the bombs destroyed Yugoslav army vehicles rather than civilian objects.

Bucaliu's testimony strongly suggests that the Albanians had to leave because the paramilitaries subjected them to humiliation and forced labor, robbed them of their valuables and ultimately murdered some of the villagers. This is precisely the point the prosecution is aiming to prove at this stage of the trial. The prosecution must still present evidence of the connection between Milosevic and the crimes, but logically this element of the case should come at a further stage of the proceedings.

To undermine Bucaliu's testimony, Milosevic asked several questions suggesting that members of the Bucaliu family were petty criminals and that in 1981 Bucaliu himself had broken a window and stolen something from a store. Presiding judge Richard May stopped Milosevic at that point, noting that even if Milosevic's smearing of Bucaliu and his family were based on facts, it would not fundamentally challenge the crux of Bucaliu's testimony-that in Spring 1999 Serb forces compelled the Albanians from Staro Selo to flee.

Serb media covering the trial are impressed by Milosevic's audacity and his detailed knowledge of the witnesses and the events in Kosovo. But as Judge May suggested regarding the Bucaliu testimony, Milosevic's strategy achieves little. Indeed, it only demonstrates that he has always been in a position to know just about everything happening in Kosovo-including the criminal campaign to ethnically cleanse the territory, allegedly committed by security forces under his command.

Where do the panegyrics concerning Milosevic's performance come from? For almost a decade now, and for a variety of political, social, and even psychological reasons, the public and opinion-makers in Serbia have been responsive to any argument any ICTY-basher could muster. This fundamental and widespread hostility has translated, unsurprisingly, into a flagrant misreading of the nature of the Milosevic trial and of the ICTY's work in general.

The Prosecution bears some blame for the confusion, having started the case by presenting the political and historical context for the alleged 1999 crimes - the only Kosovo crimes for which Milosevic faces charges. Many domestic analysts over-emphasized the trial's opening days-including the testimony of the first prosecution witness, politician Mahmut Bakali-and, venting long-held resentment and suspicion of the tribunal, they proclaimed the trial "political." These analysts are still feigning not to see that the trial has long since unfolded as a standard criminal trial that is focused on nitty-gritty details related to specific crimes in specific sites during 1999.

It took years before the critics in Belgrade gave up certain widely-held prejudices about the ICTY: about its "anonymous witnesses," "secret indictments," the alleged prohibition in the Yugoslav constitution to surrender of indictees, and others. It will hopefully take less time for observers in Belgrade to shift their focus from the tangential features of the trial against Milosevic to its essence. And the essence is not the attempt to apportion political responsibility among various individuals and communities in the former Yugoslavia, but to establish facts about many crimes committed in the former Yugoslavia through 1990s. It remains to be seen whether the prosecution will be able to prove the criminal responsibility of Slobodan Milosevic and the others indicted for these crimes. What should and can be achieved in the meantime is to clarify the Tribunal's mandate and methods as a criminal court, trying to determine who committed which crimes--what, where, when, and how in as fair and balanced a way possible.

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