A. Object and purpose
The purpose of this study is to inquire whether a prima facie case exists for the indictment of Slobodan Milosevic on charges of war crimes. Despite the fact that Acting United States Secretary of State Lawrence Eagleburger, identified Slobodan Milosevic and a number of his paramilitary agents, including Zeljko Raznatovic ("Arkan") and Vojislav Seselj, as suspected war criminals in December of 1992,(1) no public case has yet been made for the formal indictment of Slobodan Milosevic on charges of war crimes. The specific focus of the inquiry here will thus be on whether Slobodan Milosevic may be held personally responsible for the war crimes committed by Federal Yugoslav forces, Republic of Serbia forces, and Serbian paramilitary agents in Croatia and Bosnia-Herzegovina (Bosnia), whether working separately or in joint operations among themselves or with the Bosnian Serb Army (BSA) or with the Army of the Republic of the Serbian Krajina.
The identification of Slobodan Milosevic and his paramilitary agents by Secretary Eagleburger as suspected war criminals was in large part based on the fact that the atrocities committed by Serbian forces were part of a planned, systematic, and organized campaign that constituted a central means of pursuing an official goal of territorial expansion and its corollary of making areas "ethnically pure." In light of the extensive involvement in, support for, and direction by both federal and republic-level government agencies subordinate to Slobodan Milosevic, and in light of his knowledge and approval of such support and the overall activity of these agents, it is the conclusion of this study that under the rules of procedure and evidence of the International Criminal Tribunal for the Former Yugoslavia, there is sufficient evidence in the public domain to support an indictment for the arrest of Slobodan Milosevic on charges of genocide, crimes against humanity, violation of the laws and customs of war, and grave breaches of the Geneva Conventions of 1949.
The investigation and delineation of Slobodan Milosevic's responsibility for war crimes in the former Yugoslavia undertaken in this study is important for a number of reasons, which include: 1) the deterrent value in the attachment of liability for war crimes, such that the light of publicity will serve as a reminder to other would-be war criminals that their actions will not be granted de facto immunity by the world community; 2) the deterrent value associated with the fact that a number of Slobodan Milosevic's paramilitary agents continue to operate; indeed, if Slobodan Milosevic's direction of these units is not neutralized, they may well continue to terrorize non-Serb civilians within Bosnia and in the Republic of Serbia itself;(2) 3) the educational value of documenting the commission of and responsibility for war crimes, such that the general public may understand what occurred and ensure that such events are not forgotten or denied by the protagonists as time passes(3); and, 4) the value in establishing individual responsibility, which will serve to reinforce the principle that nations or the general public are not collectively responsible for the war crimes resulting from the genocidal policies of a specific individual or group of individuals(4).
On a number of occasions, the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia has declared that it is a prosecution strategy to investigate "lower-level persons directly involved in carrying out the crimes in order to build effective cases against the military and civilian leaders who were party to the overall planning and organization of those crimes."(5) Consistent with this objective, this study will articulate where the Tribunal, through its current indictments, has laid a solid legal and factual foundation for building a prima facie case that Slobodan Milosevic is widely responsible for war crimes committed in the former Yugoslavia.
In order to assess the responsibility of Slobodan Milosevic for the commission of war crimes in the former Yugoslavia, this study will first explain the current international law governing liability for the commission of war crimes. The study will then consider whether there is sufficient evidence available in the public domain to establish a prima facie case, under the rules of procedure and evidence of the Tribunal, that Slobodan Milosevic is individually responsible, both on the basis of direct responsibility and command responsibility, for the commission of war crimes in the territory of the former Yugoslavia.
B. Basic facts and definitions
Prior to exploring the legal and factual basis for the indictment of Slobodan Milosevic, it is useful first to set forth some basic facts and definitions and a comment on the sources of information relied upon for the ensuing inquiry.
1. International Criminal Tribunal for the Former Yugoslavia
The International Criminal Tribunal for the Former Yugoslavia (the Tribunal) was created by the United Nations Security Council on 25 May 1993 for the purpose of prosecuting those individuals responsible for grave breaches of international humanitarian law in the former Yugoslavia. The Tribunal consists of a Prosecutor and his staff, Chambers, including two Trial Chambers and an Appeals Chamber (Court), and a Registry.(6) The Tribunal has competence and jurisdiction to prosecute any person responsible for war crimes committed in the territory of the former Yugoslavia since 1 January 1991,(7) and as of May 1996, the Tribunal had issued indictments for and charged fifty-eight individuals with the commission of war crimes in the former Yugoslavia.
In order to assess whether a prima facie case exists for the indictment of Slobodan Milosevic by the Tribunal, this study will rely upon the standards set forth in the statute of the Tribunal and will utilize the previous indictments of the Tribunal -- in particular, those against Radovan Karadzic and Ratko Mladic -- as guiding precedents.(8)
This study will not address some of the fundamental questions relating to the applicability of the laws and customs governing the conduct of war since the Tribunal has concluded that sufficient evidence exists to establish that, from 1991, a state of armed conflict and partial occupation has existed in the Republic of Bosnia and Herzegovina and Croatia, that widespread and systematic or large-scale attacks have occurred against civilian populations, that these civilian victims were protected by the laws of war, and that the civilian and military authorities responsible for the commission of atrocities were required to abide by the laws and customs of war.(9)
2. Slobodan Milosevic
Slobodan Milosevic has exercised significant political power in the territory of the former Yugoslavia since the mid-1980s. Slobodan Milosevic's position has been dominant in Serbia since the 8th Central Committee Plenum in September, 1987, when he became the President of the Central Committee of Serbia's ruling party, then known as the League of Communists of Serbia, and subsequently renamed the Socialist Party of Serbia (Socijalisticka Partija Srbije -- SPS). In May 1989 he also became President of the Collective Presidency of Serbia. He became sole President after elections in December 1990. He was reelected in December 1992 to that post, which he has held ever since.(10) Prior to the dissolution of the former Yugoslavia, Slobodan Milosevic was able to establish control over four of the Yugoslav Federal units (Serbia, Montenegro, Voyvodina, and Kosovo).(11) After the dissolution of the former Yugoslavia and the creation of the Federal Republic of Yugoslavia (Savezna Republika Jugoslavija), consisting of the republics of Serbia (including Voyvodina and Kosovo) and Montenegro, Slobodan Milosevic retained his position as the President of Serbia and exercised legal control over all republic-level agencies. In addition, he exercised actual, and in some instances official, control over the newly-reorganized Federal Yugoslav agencies. The result has been a pervasive and interlocking system of state agencies responsive to Slobodan Milosevic's authority.
3. Yugoslav Federal Army and security forces
After the dissolution of the former Yugoslavia, Serbia and Montenegro transformed the Yugoslav People's Army (Jugoslovenska Narodna Armija -- JNA) into the Army of Yugoslavia or Yugoslav Army (Vojska Jugoslavije -- VJ). During the dissolution of the former Yugoslavia, the JNA operated widely in Croatia and Bosnia and continued these operations after its transformation into the Yugoslav Army and into two other successors, the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina.(12) Although the former Yugoslavia had a number of related Federal forces, such as the Federal police and customs service, these forces were depleted by the defection of a number of their members to the Republic-level forces of the successor republics, while the remnants of these forces were then largely subsumed into the forces of the Republic of Serbia or controlled by Slobodan Milosevic.
4. Republic of Serbia forces and agencies
The Republic of Serbia maintains its own police force, consisting of some 147,000 uniformed police officers; a secret service; and, until the defense reorganization of 1993, a Territorial Defense system. The command and control of the police force is exercised by the Republic of Serbia Ministry of Internal Affairs, which is directly responsible to the President of Serbia, Slobodan Milosevic.(13) Other Republic of Serbia agencies involved in conflict-related activities in the territory of the former Yugoslavia include Serbia's Ministry of Internal Affairs (Ministarstvo Unutrasnjih Poslova -- MUP), Serbia's Ministry of Defense and Territorial Defense (the former Republic-level reserve defense authority), and to a lesser extent the state transportation system and the Ministry of Information. The assets needed to support military operations or paramilitary agents are almost exclusively in the hands of the Republic of Serbia. For example, most large firms (including armaments factories), banks, the media, and the transportation infrastructure are owned by the Republic of Serbia and often managed by individuals who at the same time hold office in the Republic of Serbia government. In many instances, government ministers participate on the board of directors of these companies.(14)
5. Serbian paramilitary agents
Serbian paramilitary agents active during the recent war in the former Yugoslavia have represented an eclectic set of organizations, with several dozen operating in Bosnia at one time, and have differed in size, capabilities, and discipline. They have ranged from forces numbering only a few dozen men to some with several thousand.(15) Some have been little better than armed gangs while others have had greater discipline and training and even a limited conventional military capability.(16) The paramilitary agents have, in the ethnic cleansing of Bosnia and Croatia, played a key role out of proportion to their numbers.(17)
Among the larger Serbian paramilitary agents have been the Serbian Volunteer Guard (SDG -- Srpska dobrovoljacka garda, also known as the Tigers) commanded by Arkan;(18) the Chetniks commanded by Vojislav Seselj;(19)the White Eagles (Beli orlovi) commanded by Mirko Jovic;(20) and the Serbian Guard (Srpska garda) commanded by Vuk Draskovic.(21) The larger paramilitary agents were usually affiliated with a political party, and their ideological outlook has ranged virtually across the entire political spectrum, although some of the smaller paramilitary agents seem to have had no driving ideology or goals beyond plunder.(22) A common denominator for the main paramilitary agents, and ultimately one that was perhaps key to their success, has been their link to Slobodan Milosevic and the Republic of Serbia forces and agencies under his control.
The evidence relied upon by this study is limited to that found in the public domain and consists in large part of public reports made by the United Nations, Western governments, and non-governmental organizations and admissions by Serbian government officials, military personnel, and paramilitary commanders as published in the Yugoslav press. The study has also relied upon press releases and official indictments of the Tribunal to establish certain basic facts.
There is no doubt that substantial additional information exists that, if made available, would
support an even stronger case. In particular, access to official Serbian documents (written
instructions, minutes of meetings, and receipts), to other unofficial records such as photos and
videos, and to the testimony of government and paramilitary agent officials would be instructive.
Indeed, one paramilitary agent leader, Vojislav Seselj, by early 1996 was offering to testify against
Slobodan Milosevic at the Tribunal,(23) and other paramilitary agent officials and military officers
have added that they have in their possession documentary evidence that could be used to bolster
testimony about Slobodan Milosevic's linkages to the paramilitary agents and their war crimes.(24)
Information (communications intercepts, human intelligence, and overhead imagery) collected by
foreign government agencies could also provide compelling corroborative evidence, but, again,
this lies beyond the public domain at the moment.
II. The legal basis of individual responsibility for the commission of war crimes
A person is individually responsible for the commission of a war crime if he or she commits a war crime, aids and abets in the commission of a war crime, is complicit in the commission of genocide, or has command responsibility for individuals or organizations that commit war crimes and if he fails to prevent or punish the commission of war crimes by those individuals or organizations.
The military tribunals in the Nuremberg and Tokyo war crimes trials established substantial precedent relating to the prosecution of suspected war criminals.(25) Building from this precedent, the United Nations Security Council and the Yugoslav Tribunal itself have chosen to create a self-contained set of rules of procedure and evidence for the indictment and prosecution of suspected war criminals.(26) The following review of individual responsibility for the commission of war crimes thus will be limited to the statute and rules of procedure and evidence for the Tribunal, with some reference to supporting customary international law or international conventions.
A. Acts or omissions constituting a war crime
The statute of the Tribunal provides that the following acts are crimes of war for which a person may be held individually responsible and for which the Tribunal has jurisdiction:
Grave breaches of the Geneva Conventions of 12 August 1949 include the willful killing, torture, or inhumane treatment causing great suffering or serious injury to people protected by the conventions and the extensive destruction and appropriation of property. Such breaches, not justified by military necessity and carried out unlawfully and wantonly, further include compelling prisoners of war or civilians to serve in the forces of a hostile power; willfully depriving a prisoner of war or a civilian of the rights to a fair and regular trial; unlawfully deporting, transferring, or confining civilians; and taking civilian hostages.(27)
Violations of the laws or customs of war include the employment of weapons calculated to cause unnecessary suffering; the wanton destruction of population centers not justified by military necessity; the attack of undefended population centers; the seizure of, destruction or willful damage done to institutions of religion, charity, education, and the arts and science; the willful destruction or damage of historic monuments and works of art and science; and the plunder of public or private property. (28)
Genocide is defined as the intentional attempt to destroy, in whole or in part, a national ethnic, racial, or religious group by killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on its members conditions of life calculated to bring about the group's physical destruction in whole or in part, imposing measures to prevent births within the group, or forcibly transferring children of the group to another group. Punishable crimes of genocide also include conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide, and complicity in genocide.(29)
Crimes against humanity include the following acts committed against any civilian population in times of international or internal armed conflict: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecution on political, racial and religious grounds; and other inhumane acts.(30)
B. Defining individual responsibility for the commission of war crimes
A person may be held individually responsible for grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes of genocide, and crimes against humanity on the basis of direct responsibility, command responsibility, and complicity-based responsibility.
A person is individually responsible for the commission of a war crime if he commits, plans, instigates, orders, or otherwise aids and abets in the planning, preparation or execution of any of the acts listed in section A.(31) This form of individual responsibility is usually referred to as direct responsibility. The Tribunal has indicted concentration camp guards and commanders, local political and military leaders, paramilitary leaders, and national political and military leaders (Radovan Karadzic and Ratko Mladic) for war crimes on the basis of direct responsibility.(32)
A person is individually responsible for the commission of a war crime if he knew or had reason to know that his subordinates or agents were about to commit one of the acts listed in section A or had done so, and if he failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators of those acts.(33) This form of individual responsibility is usually referred to as command responsibility. The Tribunal has indicted concentration camp commanders, local political and military leaders, and national political and military leaders (Radovan Karadzic and Ratko Mladic) for war crimes on the basis of command responsibility.(34)
If a person commits, directs, or aids and abets in the commission of genocide or fails to prevent or punish his subordinates who commit, direct, or aid and abet genocide, he is individually responsible for the war crime of genocide. A person is additionally responsible for the war crime of genocide if he is complicit in the commission of genocide.(35) In most instances, this latter responsibility is referred to as complicity-based responsibility. The tribunal has indicted concentration camp commanders on the basis of direct responsibility and complicity-based responsibility for genocide. It has indicted national political and military leaders (Radovan Karadzic and Ratko Mladic) on the basis of both direct responsibility and command responsibility.(36)
The Tribunal has also indicted Radovan Karadzic and Ratko Mladic as individually responsible for the commission of war crimes on the basis that they or their subordinates permitted others to commit the war crime -- a grave breach of the Geneva Conventions -- of extensively, wantonly, and unlawfully destroying Bosnian Muslim and Bosnian Croat property.(37) Although not specifically provided for in the statute of the Tribunal, this indictment serves as a precedent for extending complicity-based responsibility beyond the crime of genocide to include other war crimes.
C. Establishing individual responsibility for the commission of war crimes
The Tribunal may indict an individual on the basis of direct responsibility, command responsibility, or complicity-based responsibility for the commission of a war crime upon the presentation of a prima facie case by the Prosecutor.(38) According to the rules of procedure and evidence of the Tribunal, a prima facie case may be established where "there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal."(39)
Evidence that may be presented to establish a prima facie case includes "any relevant evidence which [the Court] deems to have probative value" and that is not excludable by the Court on the basis that "its probative value is substantially outweighed by the need to ensure a fair trial."(40) The Tribunal is not bound by national rules of evidence,(41)and, accordingly, there is no automatic rule against the admission of hearsay or circumstantial evidence.
To present a prima facie case that a person is individually responsible for the commission of a war crime on the basis that he committed, planned, instigated, ordered, or otherwise aided and abetted in the planning, preparation, or execution of a war crime, it must be established that a criminal act has been committed and that the accused person either committed or affirmatively assisted in the commission of that act, or alternatively that forces under the effective control of the accused either committed or affirmatively assisted in the commission of that act.(42)
To present a prima facie case that a person is individually responsible for war crimes by virtue of his command responsibility, it must be established that a criminal act has been committed, the accused was in a position of superior authority to those who committed the war crime, the accused knew or had reason to know that persons subject to his superior authority were about to commit the war crime, and the accused failed to prevent or punish the perpetration of the crime. To establish that the accused was in a position of superior authority, it must be demonstrated that the persons committing the offense were under the command or control of the accused,(43)such that the accused had the ability to prevent them from committing illegal acts and to see that the offenders were punished. To establish that the accused knew or should have known of the commission of the war crime, it must be demonstrated that the accused had either actual,(44)constructive,(45)or imputed(46)notice of the crime. To establish the act of omission, it must be demonstrated that the accused failed to take such appropriate measures as were within his power to prevent and punish the commission of the war crime.
To present a prima facie case that a person is individually responsible for the crime of genocide either on the basis of direct responsibility or command responsibility, the circumstances set forth in either of the immediately preceding two paragraphs must be met. To establish a prima facie case that a person is individually responsible for complicity in genocide, it must be established that he failed to act to prevent the commission of genocide where he had a legal duty and effective opportunity to do so.
D. Establishing the individual responsibility of Slobodan Milosevic for the commission of war crimes in the territory of the former Yugoslavia
To assess whether Slobodan Milosevic may be held individually responsible for the commission of war crimes in the former Yugoslavia, this study will investigate his potential liability on the basis of both direct responsibility and command responsibility.
With respect to direct responsibility, this study will investigate separately whether Slobodan Milosevic may be considered to have directed, planned, or instigated the commission of war crimes by virtue of his effective control over Serbian forces and their paramilitary agents and whether he may be considered to have aided and abetted or directed the aiding and abetting of the commission of war crimes in Bosnia and Croatia by virtue of the fact that Serbian forces under his effective control aided and abetted the commission of war crimes by Serbian paramilitary agents, the Bosnian Serb Army, and the Army of the Republic of the Serbian Krajina.
With respect to command responsibility, this study will investigate whether Slobodan Milosevic may be considered to have failed to prevent or punish the commission of war crimes by forces under his authority and control, when he knew or had reason to know that those forces were about to commit or had committed war crimes.
In order to reduce the risk of repetition, this study will not separately explore the issue of Slobodan Milosevic's responsibility for the crime of genocide, but will rather highlight in the relevant sections where there is sufficient evidence to establish a prima facie case that Slobodan Milosevic is individually responsible for crimes of genocide on the basis of direct responsibility, command responsibility, and/or complicity-based responsibility.
To ascertain whether a prima facie case exists for the indictment of Slobodan Milosevic on the basis that he 1) directed, planned or instigated, 2) aided and abetted, and 3) failed to prevent and punish the commission of war crimes in the territory of the former Yugoslavia by Serbian forces and agencies under his control and their paramilitary agents, this study will explore the following issues:
III. Whether Serbian forces and their paramilitary agents committed war crimes in Bosnia and Croatia
The first requirement of a prima facie case for an indictment of an individual on charges of war crimes is to establish that a war crime in fact has been committed. The United Nations, foreign governments, the international and local media, and international humanitarian organizations have compiled numerous reports containing extensive, detailed, and credible evidence related to war crimes committed by regular Serbian forces and their paramilitary agents. The Tribunal has also issued fifty-eight indictments containing numerous, detailed accounts of war crimes committed in the territory of the former Yugoslavia. Although many of these crimes were committed by Bosnian Serb forces, the Tribunal has noted in a number of circumstances that Serbian forces and their paramilitary agents were also involved in the commission of war crimes.(47)
Rather than providing an exhaustive catalog of war crimes committed by Serbian forces in the former Yugoslavia, it is sufficient for the purposes of this study to provide a few illustrative examples of war crimes committed by Serbian forces, agencies, and paramilitary agents, and to reference the great body of public information documenting the commission of war crimes by these forces. It should be noted here that these crimes entailed crimes against both prisoners of war and civilians, and included criminal acts of killing, expulsion, rape, detention in concentration camps, forced labor, torture, mutilation, and the looting and destruction of property. All were perpetrated on a large and systematic scale, often with an exceptional degree of brutality.(48)
A. The commission of war crimes by Yugoslav Federal forces
The Yugoslav Federal forces, in particular the JNA and its successor, the Yugoslav Army, have been active in the commission of war crimes in both Croatia and Bosnia. Prior to the partial transformation of the JNA into the Army of the Republic of the Serbian Krajina and the Bosnian Serb Army, the JNA directly participated in the initial seizures of territory and subsequent ethnic cleansing in Croatia and Bosnia. In many instances, the JNA would operate in a symbiotic relationship with local forces and paramilitary agents, with the JNA providing a secure environment within their area of control and within which lightly-armed local forces and Serbian paramilitary agents, frequently under the command of these JNA forces, could commit systematic and widespread war crimes with impunity.(49) For instance, in early 1992, Goran Hadzic, President of the then-self-proclaimed Autonomous Region of Krajina informed General Tomislav Simovic, the Serbian Minister of Defense, "Theft is flourishing. A tank rolls down the street and liberates it, and the infantry follows, since the infantry [is there to] plunder, and then the volunteers follow with a truck and 'cleanse the area.'"(50)
In addition to providing a secure environment for the commission of war crimes by local and paramilitary agents, JNA personnel actively participated in the commission of war crimes themselves. For example, looting became so widespread that, in a meeting in the Serbian Minister of Defense's office, one official mused rhetorically, "Tell me of even one reservist, especially if he is an officer, who has spent more than a month at the front and has not brought back a fine car filled with everything that would fit inside the car."(51)
After the formality of the partial transformation of the JNA into the Army of the Republic of the Serbian Krajina and the Bosnian Serb Army, which in many ways continued to operate as a Yugoslav Army task force for Bosnia,(52)the JNA ordered a number of high-ranking JNA officers to remain behind to assist the Bosnian Serb and Krajina Serb forces in their operations,(53)which frequently entailed the commission of war crimes. In other instances, Yugoslav Army forces returned to Bosnia or Croatia to assist the Bosnian Serb and Bosnian Croat forces in their commission of atrocities.
Two high profile examples of the involvement of JNA forces in the commission of war crimes are the siege and ethnic cleansing of Vukovar and the siege and ethnic cleansing of the "safe area" of Srebrenica.
According to the official records of the Tribunal, in late August 1991 the JNA laid siege to the city of Vukovar, Croatia, and proceeded to engage in a sustained artillery assault on the city. The assault resulted in the unlawful killing of hundreds of civilians and the unnecessary destruction of most of the city's buildings. On 18 November, the JNA forces, in concert with Serbian paramilitary agents, captured and occupied the city. On 20 November 1991, the JNA, again acting in concert with
Serbian paramilitary agents,(54)removed 400 men from the Vukovar hospital, whereupon, after extensive beatings, the JNA and Serbian paramilitary agents executed 260 of their captives, burying them in a mass grave.(55) As a result of these atrocities, the Tribunal has indicted three JNA officers for grave breaches of the Geneva Conventions, violations of the laws or customs of war, and crimes against humanity.(56) To date, the JNA has refused requests to place these officers in the custody of the Tribunal, and those in official control of the JNA have failed to punish the officers for their crimes. This failure itself constitutes the commission of a war crime under the doctrine of command responsibility. In fact, the JNA has officially promoted two of the officers charged with the Vukovar related war crimes.(57)
On 16 April 1993, the town of Srebrenica was declared a United Nations "safe area" by the UN Security Council. From April 1993 until July 1995, this "safe area" was besieged and repeatedly shelled by Bosnian Serb forces. From 6 July 1995 until 11 July 1995, the Bosnian Serb Army, in coordination with Yugoslav Army units and Serbian paramilitary agents deployed from Serbia, mounted a full-scale attack on the "safe area."(58) Following their capture of the "safe area," the Yugoslav Army forces participated in the systematic slaughter of its inhabitants, with the intent to ethnically cleanse the region of the Bosnian Muslim population.(59) In the words of Judge Fouad Riad of the Tribunal:
After Srebrenica fell to besieging Serbian forces in July 1995, a truly terrible massacre of the Muslim population appears to have taken place. The evidence tendered by the Prosecutor describes scenes of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers' eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history. (60)
As Srebrenica was overrun by the Yugoslav Army and Bosnian Serb forces, a column of refugees fled along the main road to Tuzla. Before they could reach the relative safety of Tuzla, however, they were attacked by armor, artillery, anti-aircraft guns, and automatic weapons. Those who were not killed in the initial assault, including women and children, "were slowly slaughtered by a group of Serbian soldiers using knives."(61) Thousands of other inhabitants of Srebrenica surrendered to "Serbian military forces" and were taken to assembly points where they were summarily executed.(62) Others fled to the United Nations base at Potocari. Unable to secure the assistance of the Dutch peacekeepers, they were ordered onto buses by the Serbian military forces, whereupon they were taken to nearby fields and rivers and summarily executed. Women were raped and killed, and in many instances "children had their throats slit before their mother's eyes."(63) As a result of the Serbian campaign against Srebrenica, "the Muslim population of the enclave was virtually eliminated."(64)
Although the Tribunal has not yet indicted members of the Yugoslav Army, or those who exercise power, influence, and control over the Yugoslav Army, the Tribunal has indicted Bosnian Serb political and military authorities for grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes against humanity, and genocide for the Srebrenica massacre. It is therefore reasonable to assume that the activities of those Yugoslav Army forces related to the Srebrenica massacre and those in control of the forces similarly amount to grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes against humanity, and genocide.
B. The commission of war crimes by Republic of Serbia forces and agencies
In the territory of the former Yugoslavia, Republic of Serbia forces and agencies committed war crimes and directed the commission of war crimes by their Serbian paramilitary agents.
1. War crimes committed by the Republic of Serbia forces and agencies operating in the territory of the former Yugoslavia
On a number of distinct occasions, Republic of Serbia forces have operated in Croatia and Bosnia where they have committed war crimes against civilian populations. According to a United Nations report, for example, while stationed in Banja Luka, special police units from Nis (Serbia) participated in the 1992 takeover of the town of Prijedor and the subsequent war crimes committed upon its population.(65) Similarly, in June 1995 the 400-man 101st Police Battalion deployed from Serbia to operate against the Bihac pocket(66)in an operation that included the siege and shelling of the civilian population.
The Republic of Serbia forces and agencies have also maintained concentration camps within the territory of the Republic of Serbia. According to reports by the German Federal Intelligence Service, non-Serbs from Bosnia were held since 1992 in concentration camps in Serbia, where conditions included forced labor in a coal mine for those held in the Aleksinac camp.(67) As noted above, such actions are a grave breach of the Geneva Conventions and crimes against humanity.
Again, in 1995, when Srebrenica and Zepa were ethnically cleansed, several hundred Muslim survivors were forced to flee across the border to Serbia. They were dealt with at Banja Basta by officials of the Republic of Serbia Ministry of Health and of the Republic's Commissariat for Refugees. At the time, Bratislava Morina, Serbia's Commissar (komesar) for Refugees, characterized the situation as, "Serbia has again extended a helping hand."(68) Subsequent reports, however, indicated that these refugees were abused in the detention camps in which they were held in Serbia until international pressure led to their release.(69) The state-run media also aided Belgrade's propaganda campaign that accompanied the ethnic cleansing, and which included staged television filming of arrests and forced "confessions" in Bosnia by Novi Sad Television and general legitimization of the government's policy of ethnic cleansing. (70)
2. War crimes committed by Serbian paramilitary agents in the territory of the former Yugoslavia under the direction of Republic of Serbia forces and agencies
On a number of occasions, Republic of Serbia security forces exercised direct control over operations conducted in Croatia and Bosnia. In many cases, they engaged in joint operations with Serbian paramilitary agents also operating in Croatia and Bosnia. For instance, when asked if he had cooperated with the Serbian Security Service, the paramilitary commander Vojislav Seselj replied:
Yes, but only on matters related to the war in the Serbian Republic of Krajina and the Serbian Republic [of Bosnia] .... Our volunteers took part in combat as part of special units of the police from here [Serbia], under the command of Mihalj Kertes, in Eastern Slavonia and on the territory of the Serbian Republic [of Bosnia]. Also, we fought on many battlefields alongside Frenki Stamatovic, who is the head of the intelligence service of Serbia's SDB [State Security Service]. Our people liberated the area around Srebrenica, and tightened the noose around that city. (71)
In a subsequent press conference, Vojislav Seselj confirmed that his paramilitary agents had fought under the command of the Republic of Serbia Ministry of Internal Affairs' special forces, and named individual police officials who commanded his units. (72) Vojislav Seselj also stated that his Chetniks and Arkan's SDG had operated jointly with the Red Berets from Serbia's Security Service when Zvornik was seized in 1992 and its population cleansed. (73) As one of Vojislav Seselj's lieutenants, Branislav Vakic, noted, the Republic of Serbia police and Vojislav Seselj's Chetniks also operated together in the Skelane area of eastern Bosnia. Branislav Vakic added that, "I was under the direct command of Obrad Stefanovic, the commander of the special forces of the Republic of Serbia's Ministry of Internal Affairs, and under that of his deputy, Frenki Simatovic. All of that is documented, and there are many witnesses who will confirm that." (74)
Frequently those individuals from the Republic of Serbia commanding forces responsible for the commission of war crimes were high-ranking officers in Republic of Serbia agencies. These included Franko Simatovic, Deputy of Serbia's State Security. (75) Radovan Stojcic Badza, the Deputy Minister of Internal Affairs and Head of the Department of Public Security, was also reported to have commanded special forces in the Vukovar area, and to have commanded the "Slavonia, Baranja, and Western Srijem Staff," which shared responsibility with the JNA for operations in eastern Croatia. (76)
In some instances the Republic of Serbia forces and agencies created a formal structure for directing the operation of Croatian or Bosnian Serb and Serbian paramilitary agents in Croatia and Bosnia. The Republic of Serbia, for example, set up a Territorial Defense organization under the command of Radovan Stojcic Badza in occupied areas of eastern Croatia as a structure to provide the direct command element, training, and support for the reserve forces and paramilitary agents operating there. (77) Two active-duty colonels from the JNA then transferred from the Center for Military Schools in Belgrade to the Territorial Defense General Staff in Baranja, (78)with funding for the Krajina Territorial Defense being paid in cash through the office of Serbia's Defense Minister, General Tomislav Simovic. (79)
C. The commission of war crimes by Serbian paramilitary agents
Serbian paramilitary agents have played a special role in the commission of war crimes, often being the key instrument in implementing "ethnic cleansing." With respect to conventional military operations, the role of paramilitary agents has been limited and episodic, with their function largely confined to ethnic cleansing, genocide, and plunder. (80) Although the regular JNA, Yugoslav Army, and Bosnian Serb Army have themselves systematically targeted civilian populations, for the paramilitary agents, ethnic cleansing, genocide, and plunder have been at the heart of their mission and, in many respects, their raison d'être. (81)
In a number of its indictments, the Tribunal has taken note of the involvement of Serbian paramilitary agents in the commission of war crimes. In one particular instance, the Tribunal alleged that, from 17 April 1992, Serbian military and political authorities from Bosnia and elsewhere in the former Yugoslavia permitted Serbian paramilitary agents from Serbia to enter detention camps and beat and kill prisoners. (82) The Tribunal has also issued an indictment against Slobodan Miljkovic, in his capacity as the Deputy Commander of the Gray Wolves paramilitary, based out of Serbia, for war crimes related to the seizure of Bosanski Samac and the subsequent ethnic cleansing of its population. (83)
In an attempt to minimize their responsibility for the commission of war crimes, commanders of paramilitary agents have sought to claim credit for military success while blaming rival paramilitary commanders for the atrocities accompanying those military actions. (84) While such finger-pointing has done little to absolve the paramilitary commanders of their responsibility for the commission of war crimes, it has brought into the public domain substantial information relating to the activities and atrocities of Serbian paramilitary agents. The following two sub-sections will highlight some of this information by detailing some of the war crimes of Arkan's Tigers and by reviewing some of the war crimes committed by similar paramilitary agents operating out of the Republic of Serbia.
1. Arkan's Tigers (SDG)
As noted by the United Nations Commission of Experts, Arkan's SDG has been one of the most active paramilitary agents and was responsible for some of the worst acts of violence against civilians. (85) In Bosnia, Arkan's SDG played a significant role in the takeover and cleansing of such towns as Zvornik, Bijeljina, Bratunac, Prijedor, and Foca, (86)and in the Potocari massacre following the fall of Srebrenica. (87)
In the case of the Bijeljina and Janja area of eastern Bosnia at the beginning of the war, for example, Arkan himself was reportedly present to direct in person the intimidation and expulsion of Muslims and Gypsies. (88) The United Nations Commission of Experts characterized Arkan's (and Seselj's) mode of operating thus:
Upon entering a village, sometimes under the cover of shelling, particularly in those counties where they were operating simultaneously with the JNA, Seselj's and Arkan's troops would begin their reign of terror. In an overwhelming majority of the counties in which Seselj's and Arkan's troops were operating, there are allegations of killing of civilians, rape, looting, destruction of private or cultural property, and prison camps. In some instances specific individuals were targeted, such as prominent non-Serb leaders or intellectuals. (89)
Arkan's men often acted with exceptional, if calculated, brutality. In the town of Bratunac, for example, again as noted by the United Nations Commission of Experts, Muslim men were tortured by:
beatings with iron rods and wooden poles. Some prisoners were taken to an "investigation room" where they were forced to trample over their fellow inmates' dead bodies. Mutilation also occurred; ears, noses and genitals were cut off, and the sign of the cross was cut into prisoners' flesh. While being tortured, the prisoners were made to sing Chetnik songs. (90)
That such behavior was considered accepted and sanctioned practice is corroborated by the fact that preparation for harsh policies was part of the training that Arkan's paramilitary agents received. (91) Moreover, within the SDG, discipline -- something in which Arkan took special pride -- was reportedly good, thereby indicating that criminal acts were very much part of a deliberate policy rather than isolated actions by irresponsible individuals. (92)
In some instances, ethnic cleansing by members of Arkan's paramilitary agents took on a long-term, institutionalized form, as in the Bijeljina area. There, one of Arkan's subordinates, Major Vojkan Djurkovic, has run what is euphemistically known as the "State Commission for the Free Transfer of the Civilian Population," whose basic function has been the systematic expulsion of non-Serbs. (93) As confirmed by U.S. Assistant Secretary of State for Human Rights John Shattuck's fact-finding trip to the region, Arkan was also deeply involved in the large-scale campaign of ethnic cleansing in northern Bosnia in September and October 1995 as the Serbs consolidated their control in preparation for a territorial settlement. The State Department characterized the events as "a systematic pattern of ethnic cleansing, of beatings, of rape, of murder, and of severe mistreatment of Muslims and Croatians, including of the elderly and the infirm." Muslims were forced to wear white armbands and to have distinguishing signs affixed to their houses for identification, and there were reports of forced labor camps and of several hundred civilians being killed in the process. (94)
2. Affiliated Serbian paramilitary agents
In addition to the substantial amount of documentation relating to the war crimes committed by Arkan's Tigers, there has been a significant chronicling of the atrocities committed by Vojislav Seselj's Chetniks, Mirko Jovic's White Eagles, Vuk Draskovic's Serbian Guard, and Milan Martic's Knindzas.
According to the Final Report of the United Nations
Commission of Experts, Vojislav Seselj's Chetnik forces were actively involved in the commission of war crimes in Bosnia. One specific example of atrocities recorded by the Commission of Experts is that:
On 17 May 1992, Seseljovci entered Divic in Zvornik County [Bosnia] and began to loot and pillage Muslim property for nine days. On 26 May 1992, the residents of Divic were loaded onto buses supposedly headed to Olovo. Instead the buses went to Tuzla and on to Zvornik.... On 29 May 1992, the 174 male residents from Divic were moved to a movie theater in a cultural center in Celopek, seven kilometers north of Zvornik. The prisoners were threatened with death unless they could come up with 2,000 DM per person, which they did. Nevertheless, the prisoners were still beaten, tortured, sexually abused, and killed. (95)
The Final Report of the United Nations Commission of Experts also catalogued the widespread atrocities committed by Mirko Jovic's White Eagles forces. These acts include the following example:
On 13 April 1992, the city of Visegrad was occupied by the Uzice Corps. This group consisted of JNA soldiers, reservists, Uzice territorial defense forces, and White Eagles.... The corps then broadcast a message instructing the residents to return to Visegrad and assuring their safety.... The JNA then blocked all roads leading out of Visegrad with help from the White Eagles and Uzice Corps. Soldiers at the roadblocks would take away Muslims, whose names appeared on a master list. Between 18 and 25 May, the Uzice Corps left Visegrad, leaving it to fall under the control of the White Eagles, Chetnik gangs and Seselj's forces.... After the retreat of the Uzice Corps, the killing and torturing of Muslims began. Residents could not leave the city without permission. Many Serbs were seen throwing bound Muslims into the river to drown them. In early June, many girls were taken to the hotel Vilina Vlas, interrogated, and raped. Some of the females were not returned. (96)
After the massacre of Muslims in the village of Gacko, members of Serbian Reform Movement (Srpski pokret obnove -- SPO) President Vuk Draskovic's Serbian Guard paramilitary, as recounted by his wife Danica Draskovic, bragged about their rape and torture of civilians. She recalled, "I listened to members of the Serbian Guard ... as they told how they had raped a thirteen-year old Muslim girl, all twenty of them, and how they had then placed her on a tank and drove her around, and laughed about how all that was left of her was a skeleton." (97)
Milan Martic, (98)police chief and later President of the Republic of Serbian Krajina, organized a militia that subsequently became the Krajina's police force. His force -- sometimes known as the Knindzas (Ninjas from Knin) -- took part in actions in both the occupied territories in Croatia and in Bosnia. For example, according to the United Nations Commission of Experts, during their assault against the Bosnian village of Carakovo in late July 1992, "Some of the Serbs gave commands such as 'Burn down!' and 'Kill!'. It was like a hunt, as one survivor recounts, in which the nearby forest was also searched for non-Serbs. Hundreds of people were killed -- shot, burnt alive, beaten or tortured to death in other ways." (99) According to the Commission of Experts, Martic's personnel also took part in the takeover of Prijedor, Bosnia, and the atrocities committed there. (100)
D. The commission of war crimes by the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina
Although the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina were not under the official control of Slobodan Milosevic, it is important to note here an illustrative example of the war crimes committed by these forces, since, as will be discussed below, Slobodan Milosevic may be held individually responsible for the war crime of directing or permitting forces under his control to aid and abet the commission of war crimes by the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina.
As has been widely reported, the Bosnian Serb Army engaged in "ethnic cleansing" throughout Bosnia. As detailed by the U.S. Department of State:
In early 1993, the Bosnian Serb Army, supported by paramilitary forces from Serbia and Montenegro, moved to complete ethnic cleansing campaigns in eastern Bosnia. The Bosnian Serb Army virtually destroyed the hamlet of Cerska, chasing its residents into forests and minefields, and subjected Srebrenica, Gorazde, and Zepa to strangulation and intense shelling. International protective forces which reached the enclaves in March described conditions as the worst they had ever seen and noted that there were virtually no residents left to help. (101)
Activities of the Bosnian Serb Army also included the sieges of numerous towns and the targeting of civilians. In the case of Sarajevo, for example, the United Nations Commission of Experts reported that, by 1993, nearly 10,000 persons, including over 1500 children, had been killed or were missing, and that 56,000 persons, of whom nearly 15,000 were children, had been wounded. (102) As John Gannon, the Central Intelligence Agency's Deputy Director for Intelligence, testified at a hearing held by the U.S. Congress:
The Bosnian Serb Army ... has been a central participant in ethnic cleansing campaigns against Muslims and Croats. Bosnian Serb Army units have conducted systematic ethnic cleansing operations, controlled detention camps, and methodically destroyed Muslim villages.... Bosnian Serb Army forces have often operated in conjunction with Serb paramilitary units identified as perpetrators of some of the worst atrocities of the Balkan conflict. The Bosnian Serb Army has operated many of the detention camps that have held primarily Muslim and Croat civilians.... Bosnian Serb Army-run camps, notorious for their alleged brutality and death tolls, included facilities at Manjaca and Batkovic.... Bosnian Serb Army forces in both the January-April 1993 Srebrenica offensive and the April 1994 Gorazde attack, for example, razed Muslim villages well after Bosnian Serb troops had control of the areas surrounding them. (103)
With respect to war crimes committed by the Army of the Republic of the Serbian Krajina, according to the U.S. Department of State: I
n the occupied UNPA's [United Nations Protected Areas], "authorities" of the self-proclaimed and internationally unrecognized "Republic of Serbian Krajina (RSK)" controlled all military and police functions.... These forces were heavily augmented from time to time by "volunteers" provided by the Government of Serbia/Montenegro and by Serbian criminal warlords from other parts of the former Yugoslavia.... All these forces were directly involved in a continuing pattern of serious human rights abuses against non-Serbian populations as well as other Serbs.... Some of the Krajina Serb "authorities" continued to be among the most egregious perpetrators of human rights abuses against the residual non-Serb population, as well as Serbs not in agreement with nationalistic policy. Human rights violations included killings, disappearances, beatings, harassment, forced resettlement, or exile -- all part of the systematic campaign of "ethnic cleansing" designed to ensure Serbian dominance of the areas. (104)
The review of a brief selection of the information in the public domain relating to the commission of war crimes in the territory of the former Yugoslavia indicates ample justification for concluding that extensive and systematic war crimes have been committed by Yugoslav Federal forces, Republic of Serbia forces and agencies, and their various paramilitary agents. The next three sections will address the question of the extent to which Slobodan Milosevic is individually responsible for the commission of these crimes on the basis that he either ordered forces under his power, influence, and control to commit war crimes, that he ordered such forces to aid and abet the commission of war crimes, or that he failed to prevent and punish the commission of war crimes by forces and agencies subject to his superior authority.
IV. Whether Slobodan Milosevic is individually responsible for ordering, planning, or instigating the commission of war crimes in Bosnia and Croatia by Serbian forces and their paramilitary agents by virtue of his official and/or effective control over those forces
As detailed in Section II, a person is individually responsible for the commission of a war crime on the basis of direct responsibility if he commits a war crime or if forces under his effective control commit a war crime. (105) To date, the Tribunal has created a solid legal and factual foundation for indicting those responsible for planning and orchestrating the commission of war crimes through a series of indictments that establish individual responsibility both on the basis of direct evidence of the ordering of the commission of war crimes by the accused and on the deductive basis that by virtue of his effective control over the forces committing the atrocities, the accused ordered the commission of the war crimes.
With respect to direct evidence of the ordering of war crimes, the Tribunal has indicted Milan Martic on the basis of evidence that he directly ordered the firing of Orkan rockets equipped with cluster bombs into Croatian population centers. (106) In the indictment of Dario Kordic and Tihomir Blaskic, both individuals were charged with direct responsibility (and command responsibility) for war crimes committed by military
forces or paramilitary agents under their direction and control. In some instances, the responsibility of Kordic and Blaskic was derived from direct evidence that by their acts they committed crimes against humanity, (107)while, in other instances, their responsibility was deduced from the fact that military forces subject to their "power, influence, and control" committed grave breaches of the Geneva Conventions and violated the laws and customs of war. (108)
In the indictment of Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin, without specific evidence that Mile Mrksic and Miroslav Radic directly ordered JNA and Serbian paramilitary agents under their command to commit the war crimes charged, the Court deduced that these two commanders ordered, permitted, or participated in the commission of the war crimes by virtue of their "position of authority." (109) In the indictment of Djordje Djukic, the Tribunal deduced that Dukic directly participated in the planning, preparation, and execution of war crimes on the basis of Djukic's position on the Military Staff of the Bosnian Serb Army, which had responsibility for planning, preparing, and executing Bosnian Serb Army operations in Bosnia. (110)
In the review of the indictment of Radovan Karadzic for war crimes committed by forces under his control during the Srebrenica massacre, the Court found that Karadzic exercised "effective military control over the Bosnian Serb forces, as the commander and political leader of the Bosnian Serb administration" and that "he had, apparently, total authority and responsibility for the strategy and actions employed by the Bosnian Serbs in Bosnia-Herzegovina." (111) The Court then determined that "In these circumstances, it was possible to conclude that, 'the direct responsibility of [Radovan Karadzic] could arise from planning, instigating, ordering, committing, or aiding and abetting the alleged crimes.'" (112)
To investigate whether there is sufficient evidence to provide reasonable grounds for believing that Slobodan Milosevic is individually responsible for ordering, planning, or instigating the war crimes committed by Serbian Federal and republic forces and their paramilitary agents as detailed in section III immediately above, this section will consider evidence that might support a prima facie case that Slobodan Milosevic ordered, planned, or instigated war crimes and evidence that might support a prima facie case that Slobodan Milosevic exercised official and effective control over those forces responsible for the commission of war crimes.
A. Slobodan Milosevic directed the commission of war crimes
Although the investigation conducted by this study did not reveal a "smoking gun" order from Slobodan Milosevic directing forces under his control to commit war crimes, it did reveal significant evidence that Slobodan Milosevic was involved with directing the day-to-day operations of forces that were responsible for the commission of war crimes and that, by a system of "commander's intent," he authorized and instigated the commission of war crimes.
Slobodan Milosevic was intimately involved in coordinating with the JNA leadership the operations of the JNA in Slovenia and Croatia throughout 1991, as was made clear from the diary of Borisav Jovic (then Serbia's representative on the Federal Presidency), who chronicles Slobodan Milosevic's numerous meetings with the military. (113) Significantly, at a meeting held on 5 July 1991 by Slobodan Milosevic and Borisav Jovic with General Veljko Kadijevic (the Federal defense minister), the two demanded from General Kadijevic that the JNA take specific steps and deployments and advised him that, "If he did not immediately move into action in Slovenia, we would be lost in Serbia, after which the Army, too, would collapse." As Borisav Jovic added, "We were blunt. [General] Veljko [Kadijevic] accepted the requests without discussion." (114) When Veselin Sljivancanin, the JNA colonel responsible for security on the Vukovar front, asked the commander in charge of the operation, Lieutenant-Colonel General Zivota Panic about the heavy shelling against that besieged city, he claims he was told that "that is the order from Dedinje," a reference to the exclusive Belgrade suburb where Slobodan Milosevic lives. (115) Again, according to Sljivancanin, it was "a very popular politician" who ordered Vojislav Seselj to execute wounded prisoners who surrendered at Vukovar after the city fell. (116)
With respect to the operations of Serbian paramilitary agents, according to Vojislav Seselj, on numerous occasions, Slobodan Milosevic directly requested (molba) that Seselj's paramilitary units be deployed to certain areas that were occupied by Bosnian Serb or Serbian forces. (117) Invariably after their deployment, these forces engaged in acts of ethnic cleansing and plunder. Colonel Veselin Sljivancanin, indicted for the Vukovar massacre, claimed that Borisav Jovic, then Slobodan Milosevic's right-hand man, had ordered him to provide logistic support to the Serb paramilitary agents. (118) As established by the indictment of Djordje Djukic, the ordering or provision of logistic support to forces responsible for war crimes is sufficient to establish a basis for individual responsibility for those war crimes. (119)
There are also indications of a significant degree of coordination between Slobodan Milosevic and other key players, such as Radovan Karadzic, the JNA, and the Montenegrin leadership, beginning in the early days of the Bosnian crisis. This was illustrated by Belgrade press report of a recording of a telephone conversation between Slobodan Milosevic and Radovan Karadzic in September 1991:
[Milosevic to Karadzic], "Contact [JNA General Nikola] Uzelac; he will tell you everything.... If you have any problems, get in touch with me."
[Karadzic to Milosevic], "I have problems with [the city of] Kupres ... some of the Serbs there are not very obedient."
[Milosevic to Karadzic], "Don't worry, we will easily take care of that ... just contact Uzelac.... You will get everything; don't worry ... we are the strongest.... Don't worry.... As long as there is the Army, no one can do anything to us.... Don't worry about Herzegovina.... Momir [Bulatovic, President of Montenegro] told [his] people 'he who is not ready to die for Bosnia, let him take five steps forward.' No one stepped forward." (120)
This early cooperation with Karadzic also extended to Serbia's Ministry of Internal Affairs, an agency under Slobodan Milosevic's direct authority, with Radmilo Bogdanovic noting, "He [Karadzic] was working patriotically, and sought our help in organizing the Serbs, and we looked favorably on that. He was often in my office." (121)
In addition to his sometimes day-to-day involvement with forces responsible for the commission of war crimes, Slobodan Milosevic operated by a system of "commander's intent," whereby general goals were set within which subordinates could, provided that they contributed to the overall achievement of those goals, act on their own initiative. As General Tomislav Simovic, Serbia's Minister of Defense, explained when asked about Slobodan Milosevic's support for Arkan, all that was important was that he was contributing to official goals:
As far as I know, the aforementioned "Arkan" is acting with the direct blessing of the [Republic of] Serbia government in the areas of Slavonia, Western Srijem, and Baranja. It is also known that they are not the only volunteers [there]. I would not differentiate between criminals and patriots, but rather between those who contribute to the interests of their nation and those who do not, and one knows where criminals fit in. (122)
Significantly, General Tomislav Simovic and Slobodan Milosevic were reported to be in daily telephone contact via a "special phone" and also would meet privately. (123) After one such meeting between General Tomislav Simovic and Slobodan Milosevic, Simovic's office initiated the recruitment of retired army colonels for the specific mission of setting up a Serb Territorial Defense Unit in Croatia. (124) In a similar instance, the Ministry of Defense, after consultation with Slobodan Milosevic, authorized the training of paramilitary units and funding of their equipment and salaries by Republic of Serbia forces. (125)
Although the direct intelligence intercept of Slobodan Milosevic ordering the commission of war crimes has yet to surface in the public domain, (126)the evidence reviewed here indicates that there may nevertheless be sufficient evidence to establish the basis for a prima facie case that Slobodan Milosevic directly ordered the commission of war crimes by forces under his control. This section will now turn to the additional question of whether there is sufficient evidence to establish a prima facie case that Slobodan Milosevic is individually responsible for the commission of war crimes on the basis that forces under his power, influence, and control committed widespread and systematic war crimes.
B. Slobodan Milosevic exercised power, influence, and control over the Yugoslav Federal and Republic of Serbia forces and agencies and their paramilitary agents responsible for the commission of war crimes
Indictments issued by the Tribunal to date, as noted above, indicate that a person may be held individually responsible for the crimes committed by forces over which he exercises power, influence, and control. Consistent with its attempt to establish a legal and factual foundation for indicting those responsible for planning and orchestrating the commission of war crimes, the Tribunal has used these indictments to elaborate on the various indicia of a person's ability to exercise power, influence, and control.
In the indictment of Ivan Santic, the accused was considered to exercise "power, influence, authority and control over the political and strategic military aims of the HVO [Croatian Defense Council, the nationalist Bosnian Croat military forces]" by virtue of his position as the mayor of a local municipality in the region where the war crimes occurred. (127) In the indictment of Dario Kordic, the accused was considered to exercise power, influence, and control over the political and strategic military aims of the HVO military forces on the basis that he "held various political positions from time to time, (128)culminating in his position as Vice-President of the Croatian Community of Herceg-Bosna [self-styled mini-state established by the nationalist Bosnian Croat leadership] and HVO," and "by virtue of his political power base in Central Bosnia." (129) In the case of Mario Cerkez, the Tribunal found sufficient evidence to conclude that Cerkez exercised power, influence, and control over armed forces responsible for war crimes on the basis that according to the Decree of the Armed Forces of the Croatian Community of Herceg-Bosna, he was responsible for the "combat readiness of the troops under his command, the mobilization of the armed forces and police units, and the authority to appoint commanders." (130) In the indictment of Radovan Karadzic, the accused was considered to exercise power, influence, and control over forces responsible for the Srebrenica massacre on the basis that he was the founding member and president of the Serbian Democratic Party (131)and that he was authorized under the Bosnian Serb Constitution and Bosnian Serb Act on People's Defense to command the army and have the authority to appoint, promote, and discharge officers. (132)
The Tribunal has further elaborated on specific acts from which it might be inferred that a person exercised power, influence, and control over forces responsible for the commission of war crimes. In the indictment of Dario Kordic and Ivan Santic the Tribunal found that they demonstrated their "power, influence, authority and control" over civil and military matters by, inter alia, controlling municipal and governmental functions, issuing orders that were directly or indirectly of a military nature, negotiating and countermanding cease-fire agreements, negotiating with the United Nations, issuing orders for the arrest or release of influential Muslim prisoners, and negotiating the passage of relief convoys or United Nations vehicles through check-points in central Bosnia. (133) In the indictment of Radovan Karadzic, power, influence, and control over civil and military matters was demonstrated by, inter alia, his acting internationally as the president of the Republika Srpska, including participating in international negotiations, and making and implementing agreements relating to cease-fires and humanitarian relief. (134)
As the immediately following sub-section will demonstrate, Slobodan Milosevic exercised power, influence, and control over the Yugoslav Federal forces, Republic of Serbia forces and agencies, and Serbian paramilitary units responsible for the commission of war crimes in the former Yugoslavia, by virtue of his holding certain public and party offices and positions, including president of Serbia, president of the SPS ruling party, and membership on the Yugoslav Supreme Defense Council; his political power base in the region; and his responsibility for representing Yugoslavia in international negotiations.
1. Slobodan Milosevic exercised power, influence, and control over the Yugoslav Federal forces and agencies
Slobodan Milosevic has exercised power, influence, and control over Yugoslav Federal forces and agencies responsible for the commission of war crimes by virtue of the fact that Republic of Serbia institutions under the official and actual control of Slobodan Milosevic have absorbed or pre-empted Federal institutions and their functions, by virtue of his formal membership on the Yugoslav Supreme Defense Council, and by virtue of his political power base in the region. In addition, Slobodan Milosevic has demonstrated his power, influence, and control over the political and military institutions of the Yugoslav Federal government by his representation of the Federal Republic of Yugoslavia at international negotiations and by his ability to ensure the implementation of agreements reached as a result of those negotiations.
a. By virtue of the fact that Republic of Serbia institutions under the official and actual control of Slobodan Milosevic have absorbed or pre-empted Federal institutions and their functions, Slobodan Milosevic exercised power, influence, and control over those institutions
The key to decision-making and control in the Federal Republic of Yugoslavia is clearly within the Republic of Serbia, with Slobodan Milosevic being the dominant figure over both republic-level and federal-level agencies and being supported by trusted subordinates in all key positions. Although the new Yugoslavia, established when the former Yugoslavia disintegrated in 1992, is a federal state incorporating Serbia and Montenegro, Montenegro is clearly a junior, and often silent, partner in the asymmetrical relationship. (135) To a great extent, as a senior Serb official, Borisav Jovic, explained it, the establishment of the new state of Serbia and Montenegro as the Federal Republic of Yugoslavia rather than formally as an enlarged Serbia was motivated predominantly by a desire to benefit from legal continuity in order to inherit state-owned property and representational seats in international bodies. At the same time, there was a desire to avoid having to undergo a reaccreditation process before the international community as a new state, especially in the area of minority and human rights. (136)
As such, Federal officials under the new system were largely executive agents for governance by Slobodan Milosevic. Indeed, as the SPS's official organ, Epoha, clarified the intent of the federal set-up as it was being developed for the new Yugoslavia (Serbia and Montenegro), "the principle of consensus is avoided, and the President of the Republic [of Yugoslavia] is more of a representative of the [latter] state, rather than having executive-political powers [funkcije]." (137) As Montenegro's Premier, Milo Djukanovic, frustrated by the neglect of Montenegro's interests, declared, "There is, therefore, a host of questions on which the federal state is not fulfilling its role, thereby giving ample arguments to those who claim that the federal state is only a farce, and that the Federal state is only an agency of the Serbian government." (138)
Consistent with the absolute domination of the federal entity by the Republic of Serbia, federal agencies have been subordinated to or outrightly absorbed by Republic of Serbia agencies in virtually all instances, with the process in some cases beginning even before Yugoslavia's breakup in 1991. (139) For example, with the progressive disintegration of Yugoslavia, by 1990, parts of the state security apparatus, such as the Federal Security Service and the Federal Research and Documentation Center, were absorbed by their Republic of Serbia counterparts. (140) Likewise, in 1993, Serbia's Republic Ministry of Internal Affairs absorbed its Federal counterpart. (141)
Remaining Federal structures are now largely a layer of government on paper and are simply ignored by Serbia's leadership in making decisions and implementing policy. Thus, for instance, the Premier of Montenegro, Milo Djukanovic, complained, "It is completely true that there are many examples of the elementary ignoring of federal state institutions on the part of influential politicians from Serbia, and even on the part of the Republic [of Serbia] agencies." (142) The Federal Premier, Radoje Kontic, significantly, rued that "the federal government is absolutely powerless to manage the economy, since the most important levers are in the hands of the [two] republics." (143)
An additional illustration of this locus of power is provided by Vukasin Jokanovic, Yugoslavia's Federal Minister of Internal Affairs, who is technically in charge of the federal-level police and is the state-appointed examiner charged with investigating the activities of failed independent banks. In the representative case of the Dafiment Bank, which had provided multi-million dollar loans to companies owned by the Republic of Serbia, Jokanovic discovered that his attempts to investigate the activities of the bank were blocked by republic-level agencies. As he noted, "These activities are within the jurisdiction of the republic-level ministries. The federal ministry has its coordination role, that is it can suggest, initiate, and coordinate the activities of the republic-level ministries. It can raise questions, but actual concrete action rests with the republics." (144)
Some institutions, such as the Yugoslav Army, have remained technically Federal structures, yet here, too, Slobodan Milosevic has been able to engineer its subservience to Republic of Serbia agencies under his direct control. In the case of the Army, Slobodan Milosevic established his control in the wake of the JNA's dismal showing in Slovenia and Croatia by eliminating its autonomy and purging thirty-eight of its generals in May 1992 without coordinating his action with the JNA leadership.145 Through the official institutions of the Republic of Serbia, Slobodan Milosevic was able to develop an increasing degree of influence as Yugoslavia disintegrated and Serbia by default became virtually the JNA's sole source of new manpower and funding, without which military operations would have been impossible. (146) Slobodan Milosevic has demonstrated his power, influence, and control over the army by intervening with the leadership of the Army to directly affect issues of relevance to his interests, including personnel matters. (147) In order to complement his actual control with official control over the Yugoslav military forces, Slobodan Milosevic arranged the creation of the Yugoslav Supreme Defense Council on which he serves.
b. As a formal member of the Yugoslav Supreme Defense Council, Slobodan Milosevic exercised power, influence, and control over the JNA and Yugoslav Army
According to Article 135 of the Federal Republic of Yugoslavia's Constitution, adopted in December 1992, "The President [of the Federal Republic of Yugoslavia] commands the Army of Yugoslavia in peacetime and in wartime in accordance with the decisions of the Supreme Defense Council [Vrhovni savet odbrane]." That same Article further provides that the Supreme Defense Council shall consist of the Federal President and the Presidents of Montenegro and of Serbia -- that is Slobodan Milosevic, who sits ex officio and participates formally in the command relationship over the Yugoslav Army.
The Supreme Defense Council has dealt with some of the most significant issues affecting the Yugoslav Army and defense policy, such as the assessment of "the current political-military situation in the territory of the former Yugoslavia," budget issues, and the promotion, posting, and retirement of key personnel, and its charter extends to such matters as discipline and the military personnel's ethics. Moreover, its decisions seem to be determinant for, as the Federal President, Zoran Lilic, pointed out, "absolutely every decision by the Supreme Defense Council was accepted and carried out in the time and manner which had been projected by the Supreme [Defense] Council." (148) According to a reporting of the official records of the Council, Slobodan Milosevic personally takes part in the deliberations of the Supreme Defense Council. (149) As a member of the Supreme Defense Council, Slobodan Milosevic is legally entitled to gather directly information about the Yugoslav Army and, on a number of occasions, he has demonstrated this authority. For example, in his capacity as "a member of the Supreme Defense Council," he inspected the Zvecan military barracks of the Third Army and the Pristina Corps (in Kosovska Mitrovica), where "the officers ... briefed President Milosevic." (150)
c. By virtue of his political power base in the region, Slobodan Milosevic exercised power, influence, and control over Yugoslav Federal institutions, including the JNA and Yugoslav Army
As one of his biographers saw it, Slobodan Milosevic had established his predominant position within the Serbian political structure by the late 1980s, and has enjoyed ever since a virtual monopoly over political decision-making. (151) Whatever the overlapping jurisdiction between the Federal and Republic constitutions that might exist, the resulting lack of clarity is insignificant as long as power is personalized and concentrated in one individual, Slobodan Milosevic, who, for all intents and purposes, may be seen as the capstone to both the Republic of Serbia and the Federal power structures. As reported by Slobodan Milosevic's biographer, when Milan Panic marveled that Milosevic was willing to let someone else be the President of Yugoslavia, Milosevic replied, "Milan, it is not important what position I hold. I am for the Serbs a sort of Khomeini." (152)
The only challenge to Slobodan Milosevic's power base occurred during the brief interlude in 1992-93 when California-based businessman Milan Panic and writer Dobrica Cosic became, respectively, Premier and President of the new Federal Republic of Yugoslavia shortly after its establishment in a transparent attempt by Slobodan Milosevic to assuage world opinion in the wake of the imposition of economic sanctions by installing what he thought would be respectable figureheads. (153) Efforts by Panic and Cosic to assert their power at the Federal level at the expense of Slobodan Milosevic, however, failed utterly and led to their ouster and, in the process, highlighted Slobodan Milosevic's overwhelming power. (154) Subsequently, Slobodan Milosevic selected as Federal President a more pliant official, Zoran Lilic, who has not contested power despite the constitutional authority theoretically vested in his office. (155)
d. Slobodan Milosevic demonstrated his power, influence, and control over the political and military institutions of the Yugoslav Federal government by his control of Yugoslav foreign policy and representation of the Federal Republic of Yugoslavia during international negotiations
In 1991, Slobodan Milosevic set out to obtain control of Yugoslav foreign policy. Thus, in 1992, he was able to quash the agreement that Dobrica Cosic had made in Geneva with Croatian President Franjo Tudjman under the auspices of the United Nations and European Community negotiators. (156) Slobodan Milosevic subsequently used the Republic of Serbia police to prevent Cosic from negotiating with Croatia by detaining, questioning, and expelling Croatia's representatives at the border. (157) After the removal of Cosic, "Without opposition, [Slobodan Milosevic] usurped the conduct of domestic and foreign policy for the Federal Republic of Yugoslavia." (158) Montenegro's Premier, Milo Djukanovic, confirmed Slobodan Milosevic's controlling role in foreign affairs by noting that, "Slobodan Milosevic, as the undisputed leader of the Serbs, played a significant role in the foreign policy of Yugoslavia.... This did not correspond to the Constitution, but it was probably due to the needs of the time and its specific problems." (159)
Indicative of Slobodan Milosevic's primacy in decision-making is the fact that he has been the principal interlocutor in all substantive meetings with officials from the United Nations, the European Union, and the United States in dealing with the crisis in the former Yugoslavia and has been recognized as the key to the resolution of the conflict. (160) Even the Federal President, Zoran Lilic, himself emphasized the dominant role of Slobodan Milosevic in regard to the political process that surrounded the end of the war in Bosnia in 1995. Speaking in late October 1995, Lilic noted that, "On that path that we took, without doubt, Slobodan Milosevic played the greatest role. I believe that recognition must be emphasized loudly and clearly to Serbia [for ... "our peaceful foreign policy"]." (161)
Demonstrating his power, influence, and control, Slobodan Milosevic on occasion speaks officially and directly in the name of Yugoslavia -- not only of Serbia -- as was the case in talks with a visiting state security delegation from China. The statement that Slobodan Milosevic's office released on this occasion noted, "Yugoslavia views China's efforts for peace in Bosnia as support to its own efforts for a lasting peace ... [and that] Yugoslavia highly appreciated China's objective and principled position" (emphasis added). (162)
Notably, Slobodan Milosevic has also demonstrated his power, influence, and control over the political and military authorities of the Republika Srpska by negotiating on behalf of the Bosnian Serbs the Dayton Accords in Dayton, Ohio, and at the follow-up talks in Paris. (163) Typical of the dominance that Milosevic established over the Bosnian Serbs, at a preliminary meeting on 19 October 1995 with the Bosnian Serb delegation in Belgrade in preparation for negotiations with the Contact Group, according to one of the Bosnian Serbs attending, "He [Milosevic] has the last word. He asks the questions, which he then proceeds to answer himself." (164) In a revealing gesture at the Dayton talks, Milosevic told a U.S. negotiator that it would be a "waste of your time" to seek the views of the senior Bosnian Serb official at the talks. Members of the Bosnian Serb delegation complained that they were kept uninformed by Milosevic. (165)
2. Slobodan Milosevic exercised power, influence, and control over the Republic of Serbia forces and agencies
Slobodan Milosevic has exercised power, influence, and control over Republic of Serbia forces and agencies responsible for the commission of war crimes by virtue of the fact that he served as the President of the Republic of Serbia, with responsibility for, inter alia, commanding its armed forces and by virtue of the fact that he held the senior leadership position in the Socialist Party of Serbia, which controls both the Republic and Federal legislatures and the Federal Presidency.
a. As the President of the Republic of Serbia, Slobodan Milosevic exercised power, influence, and control over the Republic of Serbia forces and agencies
Slobodan Milosevic, as the President of Serbia, exercises both legal and actual power, influence, and control over Republic of Serbia forces and agencies. As the President of the Republic of Serbia, Slobodan Milosevic is the chief of state, according to Article 8 of the Republic of Serbia Constitution adopted in July 1990. As chief of state, Slobodan Milosevic has extensive legal powers in the Republic of Serbia, including: the command of the army during war and peacetime, the power to issue decrees with the force of law in times of war or threat of war or threat to national unity, and the authority to order mobilization of the armed and security forces (Article 83). As chief of state, Slobodan Milosevic is further authorized to conduct the foreign affairs of Serbia (Articles 82 and 83); appoint and remove the heads of executive agencies (Article 83), which themselves are empowered to "carry out the overall decisions of the Republic Presidency" (Article 95); and bestow decorations and awards, as well as grant amnesty (Article 83).
While other organs of government, such as the Republic Parliament, are also accorded powers under the Constitution, they in fact play a limited role in governing the Republic of Serbia as Slobodan Milosevic has coupled his general power base and his formal position as President of Serbia with his position as the President of the ruling Socialist Party of Serbia to wield authoritarian control over the Republic of Serbia forces and agencies.
b. As the President of the ruling Socialist Party of Serbia, Slobodan Milosevic exercised power, influence, and control over the Republic of Serbia forces and agencies Slobodan Milosevic's official power as President of Serbia is substantially augmented by his leadership of the Socialist Party of Serbia (SPS) ruling party, which is in control of the Republic and Federal legislatures, as well as the Federal Presidency. Since establishing his dominance in 1987 at the Eighth Session of the League of Communists of Serbia, as it was known until 1990 when it changed its name to the SPS, Slobodan Milosevic has retained control over the party structure. Even senior figures in the SPS have been dismissed summarily when they have disagreed with Slobodan Milosevic or have become political liabilities, as happened in the December 1995 purge that included SPS vice-presidents Borisav Jovic and Mihajlo Markovic. (166)
As a result of the significant degree of party discipline in what are largely the structure and practice inherited from the SPS predecessor League of Communists of Serbia, Slobodan Milosevic has an alternate, parallel channel of information and control reaching into every facet of Serbia's political, security, and economic system at both the Republic and Federal levels. His power stemming from his party position also applies over SPS members who are in the Army or in Federal-level civilian posts, who are his trusted subordinates within the party hierarchy, regardless of the formal government organizational relationship. (167) According to a former senior official of the orthodox Communist SK-PJ party (Savez Komunista-Pokret za Jugoslaviju -- League of Communists-Movement for Yugoslavia), the SPS's information and control functions are facilitated by having some 50,000 SPS apparatchiki in key positions in the government bureaucracy, police, state-run firms, and party administration. (168)
There is significant evidence that Slobodan Milosevic has used his position as head of the SPS and its extensive network of apparatchiki to maintain control over key decisions affecting Serbian paramilitary agents and government agencies. For example, as the Serbian Minister of Defense's administrative assistant noted, the ruling SPS's Central Council "had the final say in the matter of personnel for the defense agencies; apparently all parties in power act that way. Not one of whom they did not approve could now be accepted.(169) Radmila Andjelkovic [a member of the SPS's Central Council] almost daily would forward some letters recommending her personnel." (170)
In addition to these formal party linkages, Slobodan Milosevic was also able to rely on the SK-PJ to exercise power, influence, and control over the Army, police, and government structures. The SK-PJ was founded in 1990 by the JNA leadership as an orthodox Communist Party when they felt that the ruling League of Communists of Yugoslavia had become too liberal. As part of Slobodan Milosevic's process of bringing the transformed Army under his direct control, his wife, Mira Markovic, consolidated her own dominant position within the SK-PJ. (171) Later, Mira Markovic was the driving force behind the creation of JUL (Jugoslovenska Udruzena Levica -- United Yugoslav Left), a front of twenty-three leftist micro-parties, of which only the SK-PJ was a credible political organization. (172) Mira Markovic is Secretary-General of JUL's Politburo (Direkcija), which has become essentially an extension of Slobodan Milosevic's power structure. (173) As such, the SK-PJ and JUL have provided Slobodan Milosevic additional informal -- but effective -- parallel conduits of information and a redundant mechanism for control. (174) This was especially important in relation to the Army and the Republic of Serbia police, among whose members the SK-PJ and JUL, apart from Slobodan Milosevic's own SPS, remained the only tolerated parties to which they could belong. (175) This also extends to the Bosnian Serb Army, many of whose senior officers are reputed to be members of the SK-PJ.
3. Slobodan Milosevic exercised power, influence, and control over Serbian paramilitary agents
Slobodan Milosevic was able to exercise power, influence, and control over paramilitary agents responsible for the commission of war crimes by virtue of the fact that the paramilitary agents were formal units of the command structure of the Yugoslav Federal forces and by virtue of the fact the paramilitary units almost exclusively relied upon Serbian forces and agencies for essential support.
As a result of their close connection to and dependence on the Republic of Serbia government, the paramilitary agents have been an important tool for Slobodan Milosevic and an extension of his official policy apparatus. (176) Dealing through the paramilitary agents has provided Milosevic with an effective, if blunt and imperfect, instrument to carry out some of the more odious acts in support of his broader strategic goals, which required the evacuation, disappearance, or neutralization of entire non-Serb communities as territorial control was established and expanded. At the same time, the outwardly intangible links with Slobodan Milosevic and the image of the paramilitary agents as seemingly unofficial and uncontrolled elements offered the advantage of providing plausible denial, thereby allowing Slobodan Milosevic to plead that he was unaware of and not responsible for the actions of the paramilitary agents. (177) Although the paramilitary agents sometimes proved to be inconvenient to Slobodan Milosevic, especially whenever their existence became part of a broader challenge to his position by domestic political opponents, this did not diminish his critical role in and ultimate accountability for their existence and activity. (178)
a. As formal units of the command structure of the Yugoslav Federal forces, Serbian paramilitary agents were subject to Slobodan Milosevic's power, influence, and control
In July 1991, the Serbia-controlled rump Yugoslav Presidency enacted what was at the time a little-publicized measure authorizing the inclusion of paramilitary agents within the JNA structure. (179) Then, on 10 December 1991, the rump Yugoslav Presidency enacted additional legislation granting regular status within the JNA, with all related benefits, to all paramilitary forces. (180)
In accordance with this legislation, paramilitary agents, such as Arkan's SDG and Vojislav Seselj's Chetniks, while operating in Croatia, continued to communicate and deal directly with Serbian government agencies in Belgrade. Serbian Radical Party officials have stressed that Vojislav Seselj's forces were under the operational control of the Army, and thus, according to Jovan Glamocanin, Vice-President of the Serbian Radical Party (Srpska radikalna stranka -- SRS), for example, "It is well known that we did not have any military organization of our own. Our volunteers were always within the structure of the Serbian Army and under its command." (181)
The Tribunal, in its indictment of Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin, has also confirmed that the Serbian paramilitary agents operated under the control and supervision of JNA forces. In this particular indictment, the Tribunal declared that the paramilitary agents that took part in the siege of Vukovar and the subsequent beating and execution of 260 captives from the Vukovar hospital were under the command or supervision of Colonel Mile Mrksic, who commanded the JNA Guards Brigade based out of Belgrade; Captain Miroslav Radic, who commanded a special infantry unit of the Guards Brigade, and Major Veselin Sljivancanin, who commanded a military police battalion. (182)
b. As informal units of the command structure of the Republic of Serbia forces and agencies, Serbian paramilitary agents were subject to Slobodan Milosevic's power, influence, and control
Paramilitary agents, while formally participating the command structure of the JNA, also functioned informally within the command structure of Republic of Serbia forces and agencies and affirmatively responded to requests by the Serbian Government to become involved in the Croatian and Bosnian conflicts.
Speaking of Serbia's relations to the war in Croatia and Bosnia, Mihajlo Markovic, then a Vice-President in Slobodan Milosevic's SPS, noted that, in the Serbian government, "We talked not only about humanitarian aid, money, food, and medicines, and not only arms and ammunition (all of which we sent in abundant quantities), but in those days we also talked of help from Serbian [paramilitary agents]." As he explained, "Of course, we will not declare war, this state cannot enter the war, and there is no need for it to do so. After all, we also sent [paramilitary agents] earlier." (183)
Vojislav Seselj, commander of the Chetniks paramilitary unit, detailed the control of his units by Serbian Republic forces and named particular Serbian authorities under which his units operated:
Our volunteers fought as part of special units of the police from [Serbia], under the command of Mihalj Kertes in Eastern Slavonia, while on the territory of the Serbian Republic [of Bosnia] this was under the command of Radovan Stojcic Badza [Deputy Minister of the Republic of Serbia's Ministry of Internal Affairs]. Also, [we fought with] Frank Stamatovic (Frenki), who is the head of the intelligence branch of Serbia's SDB [Sluzba drzavne bezbednosti -- State Security Service]; we fought together on many battlefields.... Our cooperation goes back to just before the battle for Borovo Selo, when 'Thompsons' [sub-machine guns] arrived from the MUP for Borovo Selo. (184)
In addition, Dragoslav Bokan, the former operational commander of the White Eagles, confirmed this command relationship between the Republic of Serbia and its paramilitary agents by noting that when his White Eagles went to Borovo Selo, Croatia, in 1991, "they were met by the authorities of [the Serbian-controlled] Territorial Defense, who provided arms.... There was an agreement ... that all units would be under the direct control of the Territorial Defense.... In any event, we no longer had direct control over our boys from the moment the Territorial Defense took them over."185
In order to mask its control over paramilitary units, the Republic of Serbia claimed that its paramilitary agents were receiving support and orders from other sources, such as the local Territorial Defense in those areas of Croatia controlled by Serbs. In fact, however, the Territorial Defense units allegedly providing support and direction were fictional organizations set up by the Republic of Serbia Ministry of Defense for the specific purpose of masking its support of the paramilitary agents.186 In some circumstances, however, Republic of Serbia forces permitted themselves to be photographed with commanders of Serbian paramilitary units wearing the exact same uniforms.187
According to the statute and the subsequent indictments of the Tribunal, a person may be held individually responsible for the commission of war crimes by those subject to his power, influence, and control. A review of the evidence available to date indicates that Slobodan Milosevic exercised both official and actual power, influence, and control over Yugoslav Federal forces, most notably the JNA and Yugoslav Army, as well as Republic of Serbia forces and agencies, and even the Serbian paramilitary agents themselves. The basis of Slobodan Milosevic's power, influence, and control emanated from his holding certain public and party offices and positions, including president of Serbia, president of the SPS ruling party, and membership on the Yugoslav Supreme Defense Council, his political power base in the region, and his responsibility for representing Yugoslavia in international negotiations.
The following section will address the question of whether Slobodan Milosevic may additionally and separately be held individually responsible for aiding and abetting the commission of war crimes on the basis that Serbian forces under his power, influence, and control aided and abetted the commission of war crimes by Serbian paramilitary units, the Bosnian Serb Army, and the Army of the Republic of the Serbian Krajina.
V. Whether Slobodan Milosevic is individually responsible for aiding and abetting the commission of war crimes in Bosnia and Croatia by virtue of the fact that Serbian forces under his power, influence, and control aided and abetted the commission of war crimes by Serbian paramilitary units, as well as the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina
If Serbian forces and agencies under the official control of Slobodan Milosevic aided and abetted the commission of war crimes by Serbian paramilitary agents, then Slobodan Milosevic may be held individually responsible for the crimes committed by the paramilitary forces. (188) To establish that the Serbian forces and agencies "aided and abetted" the commission of war crimes by Serbian paramilitary agents, it must be demonstrated that those forces in some manner facilitated the commission of war crimes by the paramilitary agents. In order to attach responsibility for aiding and abetting paramilitary units via the provision of weapons and supplies, prior to their commission of war crimes, it is necessary to further demonstrate that Slobodan Milosevic had notice that these paramilitary units would be likely to commit war crimes.
To date, the Tribunal has issued one indictment solely on the basis of aiding and abetting and has noted in two other indictments that individuals who "permit others" to engage in war crimes are themselves individually responsible for those crimes. In the case of General Djordje Djukic, the Tribunal's indictment was based "on the accused's role in aiding, as the head of logistics, the Bosnian Serb Army in its operations which included the shelling of civilian targets during the Bosnian Serb siege of Sarajevo between May 1992 and December 1995." (189) In the case of Radovan Karadzic and Ratko Mladic, the Tribunal based its indictment in part on the observation that subordinates "were about to destroy or permit others to destroy the property of Bosnian Muslim or Bosnian Croat civilians." (190) In the case of Slobodan Miljkovic, Blagoje Simic, and Milan Simic, these political authorities were indicted for "permitting units of paramilitary soldiers from Serbia to enter the detention camps to kill and beat the prisoners." (191)
Although the act of permitting others to commit war crimes in areas under a person's control appears to be a lower threshold of aiding and abetting than that set in most national jurisdictions, it is useful to note that, in the Djukic indictment, the sole act of aiding and abetting the commission of war crimes through the organization of the provision of logistical support was deemed sufficient to issue an indictment, and, in the other two cases, that the definition of aiding and abetting encompasses the complicity-based act of permitting others to carry out those crimes when it appears the accused had the opportunity to prevent such a crime. (192)
Based on these precedents, a review of even the partial evidence that is publicly available indicates that Republic of Serbia forces and agencies and Yugoslav Federal forces subject to the power, influence, and control of Slobodan Milosevic, on a substantial number of occasions, did in fact direct, aid, and abet and were complicit in the commission of war crimes in Bosnia or Croatia by Serbian paramilitary agents. Notably, the activities of the Republic of Serbia forces and agencies were central in areas such as financing, the provision of arms, recruitment, training, logistical support (including transportation to areas of operations), medical care, social benefits, and joint planning and operations. Without such help, the ability of the paramilitary agents to operate would have been severely limited or even made impossible in many cases.
A. Yugoslav Federal forces and Republic of Serbia forces and agencies subject to the power, influence, and control of Slobodan Milosevic aided and abetted the commission of war crimes by Serbian paramilitary agents
Yugoslav Federal forces and Republic of Serbia forces and agencies subject to the power, influence, and control of Slobodan Milosevic had sufficient notice that Serbian paramilitary units were likely to commit war crimes if they were armed and supported and provided access to the conflicts in Bosnia and Croatia. Despite this clear notice, the Republic of Serbia forces and agencies were active in the initial organization of Serbian paramilitary agents, the provision of financial and other necessary resources, and the provision of weapons. In numerous instances, the Republic of Serbia forces and agencies also facilitated the expulsion of Muslim civilians from Bosnia and the illegal expropriation of Bosnian property by Serbian paramilitary agents.
1. Republic of Serbia forces and agencies had notice that Serbian paramilitary agents would commit war crimes
Prior to the war in Croatia, in light of the fact that these paramilitary agents had previously committed atrocities in Voyvodina and other areas of the Republic of Serbia, often at the behest of these agencies, Republic of Serbia forces and Slobodan Milosevic had constructive notice that their paramilitary agents would commit war crimes in Croatia and Bosnia. Additional notice -- in some instances during parliamentary debate -- was provided by the fact that the commanders of these paramilitary agents had openly expressed their desire to engage in acts of ethnic cleansing.
In 1991, prior to the outbreak of hostilities in Croatia, Arkan's Tigers were active against the non-Serb communities in Voyvodina in an effort to force them out. One of Arkan's lieutenants would call people on the telephone and tell them to leave. As he related, "Some grenades would drop out of my hands, and would fall into some Croatian houses." He was proud that, "thus I forced them out .... [The town of] Slamkamen was thus cleansed very quickly." (193) Vojislav Seselj's Chetniks were also active in Voyvodina, not only in the village of Hrtkovci, which drew considerable media attention at the time, but also throughout the province. On numerous occasions, his forces beat up, threatened, and killed non-Serbs, and ultimately forced many out of the province. (194) Vojislav Seselj's Chetniks also intimidated the Croatian community in Janjevo, Kosovo, with the intent of forcing them to leave. (195)
The activities of these paramilitary agents, in fact, served the domestic interests of Slobodan Milosevic, while enabling him to avoid giving the appearance that the government was involved. For instance, Vojislav Seselj's policy at the time reinforced and ran parallel to official actions, which included punitive mobilization into the Army and political intimidation, both of which worked to encourage non-Serbs to leave Voyvodina. (196) Mirko Jovic's group of White Eagles from Nova Pazova also assisted Slobodan Milosevic in consolidating control over Voyvodina by violently intimidating the domestic opposition, such as when he helped overthrow the provincial authorities in street rallies in Voyvodina in 1989. (197) In some cases, Slobodan Milosevic's government even abetted and indirectly legitimized such actions by insisting in public that non-Serbs were leaving Voyvodina "voluntarily," thus ignoring the ongoing intimidation by the paramilitary agents there.
In conjunction with their violent activities against non-Serbs, the commanders of the paramilitary agents also publicly expressed their views on the need to purge large swaths of the former Yugoslavia of non-Serbs. Virtually all of the new political parties attached to the paramilitary agents made expanding Serbia's territory a pivotal tenet of their program, with these parties and their paramilitary commanders showing no reticence about creating an atmosphere of fear and violence to achieve their goals. (198) For instance, as Mirko Jovic had noted in June 1990, "We are not only interested in Serbia, but in a Christian, Orthodox Serbia, with no mosques or unbelievers." (199) In a similar statement, Vojislav Seselj announced in Parliament that, "You can be sure that when Serbia's government changes, we will expel all of you [non-Serbs]." (200)
Even in private, paramilitary commanders would repeat the same message to Serbian officials in describing their vision and policy of ethnic cleansing. For example, paramilitary agent leader and Parliament Deputy Milan Paroski told General Tomislav Simovic, "My goal is not only to defend Serbianness but to cleanse territory, to have an ethnically clean state. You can have progress [only] within such a state." As he talked to General Simovic, Paroski added, "I informed Radmilo Bogdanovic [Serbia's Minister for Internal Affairs] about all of that." (201)
Notably, subsequent to the siege of Vukovar and the Vukovar hospital massacre, Republic of Serbia forces and Slobodan Milosevic had actual notice that their paramilitary agents were prone to committing atrocities and would likely do so in Bosnia, especially given that, according to the indictment issued by the Tribunal, the paramilitary agents responsible for the atrocities committed in Vukovar did so upon the instruction of JNA officers. (202)
2. Republic of Serbia forces and agencies were active in the initial organization of Serbian paramilitary agents
The involvement of Republic of Serbia-level agencies, over which Slobodan Milosevic exercised power, influence, and control, provided substantial assistance in the original establishment of many of the Serbian paramilitary agents based out of the Republic of Serbia. The former chief of the criminal police in Belgrade, when asked how paramilitary agents such as Arkan had been set up in Serbia, explained coyly, "Sometimes there is secret approval. Or, their establishment can be initiated by some centers of power. Thirdly, there is the possibility that they can be, let us say, legitimated [verifikovano] by the establishment. You can have a combination of all three possibilities, or just one of them." (203) In a number of instances, the Republic of Serbia government itself initiated the creation of paramilitary agents. For example, Radmilo Bogdanovic, Serbia's Minister for Internal Affairs (which includes the police) during the crucial 1987-1991 period, (204)declared:
In the meantime, our National Parliament passed the Law on National Defense, with an amendment according to which volunteer units could be organized, and be put under the command of the JNA or the Territorial Defense. Thus, Arkan got started. At first, with forty volunteers, later with some more. I oversaw [pratio] that initially as President of the Security Council, then it was taken over by [Serbia's Minister of Defense] General Simovic and other generals. Other volunteers, not only Arkan, were set up that way, that is as a component of the JNA or of the Territorial Defense on that territory. (205)
According to one report, the head of Serbia's State Security Service, Jovica Stanisic, was instrumental in organizing the Serb uprising in Croatia and was the liaison for Serbia's subsequent support for Milan Martic. (207) It became an open secret within Serbia's defense and security establishment that it was they who were Arkan's patrons. When Arkan appeared on television in 1991 and was asked to name his commander, according to the administrative assistant of Serbia's Minister of Defense, everyone in the Ministry of Defense was afraid that Arkan would reveal the linkage openly. He stated, "In the office, there was a hush and all of us expected Arkan ... to say in front of the whole world, 'General Simovic.' [But he said publicly instead]: 'Patriarch [of the Serbian Orthodox Church] Pavle.' Everyone began to laugh. That was done frivolously, in his manner." (208)
The Republic of Serbia government was also instrumental in establishing and supporting local Serb paramilitary agents in Croatia and Bosnia-Herzegovina. One particularly notorious paramilitary unit was Milan Martic's. It operated both in Croatia and Bosnia and eventually became the Serbian Krajina Republic's police force. According to Radmilo Bogdanovic:
Thus we had ties with [Milan] Martic, who was first the commander of the [Krajina] police and then Minister for Internal Affairs [in Krajina]. We extended help to enable them to ... begin from nothing. It was the same way when people from the present-day Serbian Republic [of Bosnia], the then-Bosnia-Herzegovina, turned to us.... We did our utmost to carry out, follow up, and provide [the help] they sought and for that which Serbia and the Serbian people offered. There, that is what the [police] Service did. (209)
A number of paramilitary agent commanders have confirmed the central role that Slobodan Milosevic or his direct political appointees personally played in establishing the paramilitary agents. For instance, in a television interview, paramilitary leader Vojislav Seselj noted:
Milosevic was a leading nationalist and patriot in '91 and '92. At that time, we cooperated closely. When 30,000 Serbian volunteers were sent to the front, he was the one supplying the arms, the ammunition, the clothes, and the food. He supplied transportation. He allowed us to use military facilities, etc. (210)
Another paramilitary leader, Daniel Sneden ("Captain Dragan"), declared, "All that I was able to do successfully in the Krajina was while Mr. Radmilo Bogdanovic was [Serbia's] Minister of Internal Affairs." (211)
Once the paramilitary agents were established, the Republic of Serbia systematized the relationship by designating specific paramilitary personnel to perform liaison functions with the Serbian government. (212) In cases in which paramilitary agents fell out of favor with Slobodan Milosevic, their resources and support were cut off by the Serbian government. As one of Vojislav Seselj's former lieutenants noted, after Vojislav Seselj's paramilitary agent had broken with the Slobodan Milosevic government, "[Now,] without the [Republic of Serbia] government's support, clearly, there are also no [more] volunteers." (213)
3. Republic of Serbia forces and agencies were active in the provision of financial and other necessary resources for Serbian paramilitary agents
After establishing their paramilitary agents, the Republic of Serbia forces and agencies continued to aid and abet the commission of war crimes by these forces by providing them with substantial financial resources. Such funding was crucial to the continued operation of the paramilitary agents as war booty by itself was not a sustainable source of income. On the whole, the most important forms of financial support to the paramilitary agents from the Republic of Serbia government were cash subsidies. In addition, the Republic of Serbia paid leave from state-sector jobs while individuals served in the ranks of the paramilitary agents, medical care for the wounded, and bonuses and pensions to the families of those who died while on duty. (214) Wounded members of paramilitary units were sent also back for treatment at the Yugoslav Army's medical facilities in Belgrade. (215) In some instances, the Republic of Serbia agencies provided office space from which to operate. (216)
On a number of occasions, the Republic of Serbia agencies funneled financial assistance to their paramilitary units through more circuitous routes, with agencies such as Serbia's Ministry of Defense using funds obtained from state-owned and private firms and individuals to equip and pay the paramilitary agents. As the Serbian Minister of Defense's administrative assistant noted of the early period, "It was necessary to obtain clothing, arms and basic equipment for those deploying as volunteers. It was not possible. There was little money, there were no arms imports, and production capacities are small. What could we use?" In that case, Jezdimir Vasiljevic, a private entrepreneur, came to help and gave money and equipment through his companies and bank. (217) Vasiljevic also provided funds to Arkan's Tigers directly, including bonuses to the wounded and to the families of those who died in action, (218)while other Serb businessmen made contributions to other paramilitary agents for similar purposes. (219) In one specific instance, the director of the Dafiment Bank claimed, "I financed most of the 'Captain Dragan' Fund." (220)
The cost of Arkan's extensive organization, in particular, must have been considerable. Not surprisingly, Arkan's spokesmen have been vague about the sources of the Tigers' funding. (221) One Arkan spokesman recently claimed that, "The Army of the Republic of the Serbian Krajina participates in funding the Tigers, since it is within the [their] organizational structure." (222) This is highly doubtful, however, since only the small eastern Slavonia area is left under the control of the Krajina, which itself was virtually completely dependent on Slobodan Milosevic for its finances. (223) As Arkan's spokesman himself acknowledged with regard to obtaining arms, "We have help from the Republic of the Serbian Krajina, and I suppose that the Republic of the Serbian Krajina gets help from Yugoslavia." (224)
4. Republic of Serbia forces and agencies were active in the provision of weapons for Serbian paramilitary agents
The provision of arms and training, in addition to funding, was key to enabling the Serbian paramilitary agents to carry out their criminal activities. While the Yugoslav Army was one primary source of arms, the Republic of Serbia police forces, Territorial Defense organization, and other republic-level agencies were also substantially involved in the provision of arms and training. Serbia's Minister of Defense, for instance, was alleged to be a primary supplier who obtained weapons from various sources and turned them over to Serbia's Territorial Defense officials for distribution to the paramilitary agents. (225)
A number of paramilitary agents have acknowledged receiving arms from republic-level sources. According to Vojislav Seselj, for example, "Moreover, we would not have been able to carry out the war during the first days by ourselves had we not received arms from them [Serbia's Socialists, that is Slobodan Milosevic]. How could we have?" (226) Elsewhere, Vojislav Seselj also noted, "We received arms from him [Mihalj Kertes, then Serbia's Deputy Federal Minister of Internal Affairs, Head of the Secret Service, and Vice-President of Serbia's Presidency] for our volunteers." Asked who else, specifically, had given him arms, Vojislav Seselj replied, "Serbia's leaders ... gave some arms ... old weapons ... [U.S.-made] Thompson and [Soviet-made] Shpagni sub-machineguns.... The [Serbian] police provided that from its stocks, and from the stocks of [Serbia's] Territorial Defense, since the Territorial Defense was under the authority of the Republic [of Serbia], rather than under the Federal Government [of Yugoslavia]." (227) Again, Vojislav Seselj noted, "We received arms from [the Serbian police]. Of course, we also received [arms] from the Army, but many more from the police." (228) Colonel Vojislav Sljivancanin, who served as chief of JNA security on the Vukovar front and who has been indicted by the Tribunal, adds, "Serbia's MUP [Ministry of Internal Affairs] provided the complete arsenal of the 'White Eagles,' 'Tigers,' and Seselj's Radical Party." (229)
Another paramilitary commander, Branislav Vakic, stated that, in addition to the receipt of weapons, his forces also received extensive training by Serbian police forces:
While the war was going on, our volunteers received arms and equipment from the [Yugoslav] Army and the [Serbian] police. Of course, appropriate receipts exist for that. Three hundred people were stationed in the MUP [Ministry of Internal Affairs] Personnel Training Center in Tara. We also received uniforms from the MUP. (230)
For his part, Vojin Vuckovic, the commander of the Yellow Wasps paramilitary agent noted that, when he had deployed from Serbia to Bosnia, he "arrived in Zvornik [Bosnia] already armed." (231) Likewise, hard-line Serbian rebel leader Simo Dubajic from Croatia claimed that he coordinated with Serbian officials such as Radmilo Bogdanovic, Mihalj Kertes, and Jovica Stanisic (Director of Serbia's State Secret Service) and that he had received rifles even before fighting broke out in Croatia from the state-owned "Crvena Zastava" (Red Flag) enterprise in Kragujevac, Serbia. (232)
In many instances, the transfer of these weapons and the provision of training was the direct result of the personal involvement of Slobodan Milosevic. According to Vojislav Seselj, "Thanks to the cooperation and alliance with Milosevic, our impact on this war was exceptionally great.... We received from him weapons, uniforms, buses, and a barracks in Bubanj Potok [near Belgrade] where we trained our volunteers." (233) The central role of Slobodan Milosevic is supported by the extensive involvement of various Serbian governmental agencies, which could only be coordinated and directed from the Serbian Presidential level. For instance, not only did the paramilitary agents receive weapons and training from the Serbian police force and Territorial Defense units, but they were also then permitted by the Serbian MUP border control forces and federal customs officers to transport those weapons across the border to Croatia and Bosnia. (234)
5. Yugoslav Federal forces engaged with paramilitary agents operating in Bosnia and Croatia in joint operations that had the effect of aiding and abetting the commission of war crimes
Yugoslav Federal forces also engaged with paramilitary agents operating in Bosnia and Croatia in joint operations that had the effect of substantially increasing the ability of the paramilitary agents to commit war crimes. According to the indictment of Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin, for war crimes committed during and after the siege of Vukovar, the Yugoslav Federal forces participated in and in some instances ordered the commission of war crimes by paramilitary agents. (235) Without the overwhelming presence of the JNA in Croatia, it is unlikely that the siege of Vukovar would have been successful, and, without the subsequent control of the city by the JNA, it is unlikely that the paramilitary agents would have been able to successfully carry out their program of mass murders.
In the case of the siege and subsequent massacre at Prijedor in May 1992, Arkan's Tigers and other Serb paramilitary agents carried out their war crimes with JNA support. According to press reports, "During that time ... JNA transport helicopters and Gazelles [attack helicopters] ferried arms and ammunition to the Serbian forces, while the JNA had distributed arms to Serb villages, such as Maricka, Tomasic, and Rakelic even before the war." (236) When Arkan committed war crimes in Zvornik, the United Nations Commission of Experts noted that Arkan's forces were free to operate in the city center while the Yugoslav army forces secured the surrounding area. (237) Had the paramilitary agents been left on their own, even the fledgling Croatian and Bosnian government forces would probably have been able to deal with them and could have prevented most of their atrocities. (238)
Speaking about Arkan's operations in Croatia in 1991, Colonel Veselin Sljivancanin (himself indicted by the International Tribunal), then a JNA major at the front, noted, "Without the support of the JNA, he [Arkan] was nothing, because the JNA had tanks, artillery, medical support, logistics, and so on."(239) JNA generals made similar assessments, for example, after the end of the 1991 Serbo-Croatian War, Colonel General Zivota Avramovic, at the time Yugoslavia's Deputy Minister of Defense, belittled the impact of paramilitary agent forces and ridiculed those in Serbia who "attributed military successes to various volunteer and other units." Continuing in this vein, he concluded, "I must say that the contribution made by [such] small-sized units cannot be compared to the operational-strategic achievements of the JNA's units.... In reality, without the JNA, not a single 'guard' [paramilitary agent] would be able to defend the Serbs successfully from the Ustase knife and even less so to hold on to the front dividing [our] people from the enemy." (240)
6. Republic of Serbia forces and agencies facilitated the expulsion of Muslim civilians from Bosnia by Serbian paramilitary agents and their subsequent illegal expropriation of Bosnian property
Once fully operational and deployed in Croatia and Bosnia the paramilitary agents then needed the assistance of the Republic of Serbia forces and agencies in facilitating the expulsion of Muslim civilians from Bosnia, and in illegally expropriating Bosnian civilian property back into Serbia. (241) A former official of Serbia's Border Police described the process by which the Republic of Serbia aided and abetted Arkan's Tigers in carrying out the expulsions of non-Serbs from Bosnia to Hungary through Serbia:
I spoke with Petar Duikovic, who at the time was the Director of [Serbia's] Border Police. He confirmed to me that group [being expelled] had been transported across the territory of Yugoslavia, and quite simply: the border police in Sremska Raca had been informed that a bus with twenty-three people would be crossing Serbia's territory, and they did so. (242)
In fact, the Serbian authorities also allowed Serbian paramilitary agents based in Bosnia to operate on the Republic of Serbia's territory against the Muslim community in the Sanjak province, where they abducted people and raided villages. (243)
Republic of Serbia forces and agencies aided and abetted the looting that accompanied the paramilitary agents' operations in Croatia and Bosnia by allowing the paramilitary agents to keep and dispose of their booty in Serbia. In some instances, the plunder consisted of considerable quantities of cars, appliances, cash, and other valuables, necessitating entire truck convoys to transport it to Serbia. (244) Without a policy of tolerance, if not connivance, by the Serbian authorities, this would have been impossible to carry out, especially on a continuous basis and on such a large scale.
In just one example of such aiding and abetting, the Serbian authorities who were in control of the bridges spanning the Drina and Sava Rivers separating Bosnia and Serbia allowed Arkan's SDG, Captain Dragan's men, and others to extort money from fleeing non-Serbs as they crossed the bridges into Serbia in transit to refuge abroad. One of the sites included the bridge over the Sava River at Bosanska Raca, located 20 kilometers north of Bijeljina, where Arkan's men demanded payment of 500 to 800 German marks for each Bosnian who wanted to cross the bridge to Serbia. In addition, these forces operated small boats and charged departing Muslims up to 1000 German marks for the crossing. As a U. S. Department of State report concluded, "Under the guise of aiding the voluntary resettlement of the Muslims, Serbs robbed them of their last coin." (245)
The Republic of Serbia police would also regularly monitor the returning expropriated property and issue specific written permission to facilitate the paramilitary agents' illegal transfer
of this property when they crossed back into Serbia. In one notable case, a paramilitary commander, Branislav Vakic, published a permit he received in 1993 from the Republic of Serbia Police's section for Special Operations listing the items that "were taken as war booty" and that he was allowed to bring back to Serbia from Bosnia. (246)
Even Republic of Serbia government-run agencies engaged directly in the looting. For example, when personnel from the Novi Sad station of Serbia's state-run television accompanied the JNA during operations in Eastern Croatia, they removed broadcast equipment from the occupied territories and shipped it back to Novi Sad, much to the chagrin of local Serbs who wanted to keep the equipment for their own use. (247) Such expropriation of property is a violation of both the laws of war and the Geneva Conventions of 1949.
B. Republic of Serbia and Yugoslav Federal forces subject to the power, influence, and control of Slobodan Milosevic were active in aiding and abetting the Bosnian Serb Army and Army of the Republic of the Serbian Krajina in the commission of war crimes
The extensive support of the Republic of Serbia and Yugoslav Army forces enabled the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina to operate and commit extensive war crimes on territory under their control. Although the habitual commission of war crimes by the Bosnian Serb Army has been documented above, it is more telling to note that the Tribunal has indicted both the political Commander in Chief and the military commander of the Bosnian Serb Army for ordering and attempting to carry out the genocide of the Muslim population of Bosnia. (248) Without the Yugoslav Army forces' support, the operational effectiveness of the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina would have been seriously degraded, and its ability to conduct genocide would have been significantly hindered or prevented.
1. Yugoslav Federal forces engaged in joint operations with the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina
Yugoslav Federal forces also engaged in joint operations with the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina. This had the effect of substantially increasing the ability of these armies to commit war crimes. While publicly denying any involvement by the government of the Republic of Serbia with military operations beyond Serbia's borders, Serbia's officials sometimes candidly acknowledged their country's role in aiding and abetting those military operations as they sought to claim credit for their policy. Thus, Borisav Jovic, a vice-president of Serbia's ruling Socialist Party, boasted to a convention of Serbia's Young Socialists that although "the war was conducted far from Serbia's borders," the Republic of Serbia leadership still managed to "liberate" the Serbian population in what "Serbs until recently did not even know were Serbian territories." (249) The SPS's spokesman, Ivica Dacic, too, boasted, "It would be difficult for any citizen of the Republika Srpska [Bosnian Serb Republic] or the Republic of the Serbian Krajina to be able to show you a single inch (pedalj) of Serbian land which they have liberated." (250)
In operational terms, the Yugoslav Army's involvement and support included sustained direct cross-border military operations from Serbia in conjunction with the Bosnian Serb Army attacks on civilian populations clustered in "safe areas." For instance, the takeover of Srebrenica in July 1995 was spearheaded by Yugoslav Army forces deployed from Serbia for that purpose. (251) As an eyewitness described the Yugoslav Army's earlier large-scale attack in January 1993, "Just from the direction of Bajina Basta [a border town within Serbia, on the way from the Yugoslav Army headquarters of the Uzice Corps] ... we watched 280 tanks, armored personnel carriers, self-propelled artillery, multiple rocket launchers, and missiles. The earth and sky were ablaze. We could not sleep. There were dozens of flights by helicopters and [fixed-wing] aircraft." (252) Again, the attack against a UN-designated safe zone, Gorazde, in April 1994 reportedly was led by a mechanized infantry brigade and three batteries of artillery deployed from the Yugoslav Army's Uzice Corps, as well as a battalion of "Specijalci," special forces. (253)
2. Yugoslav Federal forces provided the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina with substantial material support
The Yugoslav Federal force, in addition to engaging in joint operations with the Bosnian Serb forces and the Army of the Republic of the Serbian Krajina, aided and abetted these armies by supplying them with substantial amounts of material support, even after their original wholesale establishment of those forces.
Yugoslav Federal forces have provided to the Bosnian Serb Army significant help with logistics, training, intelligence, and planning, (254)including crucial supplies of fuel, spare parts, raw materials for military production, replacements for lost arms, and ammunition. Reacting to this support, the international community demanded a cut off of all such assistance. As a result of this pressure, Slobodan Milosevic announced in August 1994 that he would be halting military aid to the Bosnian Serb Army as a way to force the Bosnian Serbs to be more flexible on the Contact Group peace plan. As an indication, however, of Slobodan Milosevic's unwillingness actually to enforce such an embargo, he permitted only 135 foreign civilian observers with a restricted mandate instead of the 1500-2000 military observers that were thought necessary by the international community. He also significantly increased the number of helicopter resupply flights into Serb-held areas of Bosnia. (255)
The overwhelming dependence of the Bosnian Serb Army was illustrated when Slobodan Milosevic temporarily cut off fuel supplies. This resulted in the Bosnian Serb Army's defeat in several engagements in central Bosnia, with the army abandoning some of its tanks when they ran out of fuel. (257) This cooperation then remained in place -- as demonstrated, for example, by the shoot-down of the American pilot in 1995, when it became public that the Bosnian Serb Army's air defense system was integrated into the headquarters in Belgrade, which directed operations.
3. Yugoslav Federal forces provided the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina with both funding and personnel
The Yugoslav Federal forces also aided and abetted the commission of war crimes by the Bosnian Serb Army and the Army of the Republic of the Serbian Krajina through substantial financial assistance and the loan of a significant number of officers and front-line personnel. (258)
Most notably, Djordje Djukic, who was indicted by the Tribunal for war crimes committed in Bosnia, resided in Belgrade and concurrently held the rank of lieutenant general in the Yugoslav Army and in the Bosnian Serb Army, in which he served as Assistant Commander for Logistics for Ratko Mladic. (259) Upon his release from the custody of the Tribunal for reasons of ill health, Djordje Djukic was treated for his illness at the Belgrade military hospital, where he subsequently died. In fact, according to other Western intelligence assessments made in late 1992, "The [Yugoslav Army] general staff in Belgrade is obedient to Milosevic. Belgrade doesn't plan only the movement of Serbian [Yugoslav Army] forces.... In B[osnia]-H[erzegovina], [BSA General Ratko] Mladic has multichannel communications to both his subordinate commanders and to the [Belgrade] general staff and Milosevic." (260)
In the case of the Krajina, Milan Babic, erstwhile President of the Serbian government there, claimed that, "the [Krajina] police gets its pay and orders from Slobodan Milosevic" and that the Krajina's Army "is under the control of the supreme command [the Yugoslav Ministry of Defense] and of the General Staff [of the Yugoslav Army]." (262)
At times, this relationship was unexpectedly transparent. In May 1995, for example, the Assistant Commander of the Yugoslav Army General Staff and Commander of the Yugoslav Army's Special Purpose Corps, Mile Mrksic (indicted subsequently by the Tribunal), was simply shifted to become the Commander of the Republic of Serbian Krajina Army as the replacement of the existing commander after his defeat in Western Slavonia. (263)
The above review of information available in the public domain indicates that there is substantial evidence to establish a prima facie case for the individual responsibility of Slobodan Milosevic for the commission of war crimes in the territory of the former Yugoslavia on the basis that Serbian forces and agencies under his official and actual control aided and abetted the widespread and systematic commission of war crimes by Serbian paramilitary agents. Specifically, this evidence indicates that, based on the previous public statements and activities of the paramilitary agents, Slobodan Milosevic had actual notice that the paramilitary agents would commit atrocities in Croatia and Bosnia if they were provided weapons, supplies, and access to the areas of conflict. With this knowledge, the Republic of Serbia forces and agencies under the power, influence, and control of Slobodan Milosevic proceeded to organize Serbian paramilitary agents, provide them with financial and other necessary resources, including weapons, and then facilitate their expulsion of non-Serbs from Bosnia and the illegal expropriation of Bosnian property back into Serbia.
With the Serbian paramilitary agents in the hands of the Republic of Serbia forces and agencies, the Yugoslav Federal forces, similarly under the power, influence, and control of Slobodan Milosevic, aided and abetted the commission of war crimes by the Bosnian Serb Army and the Army of the Republic of Serbian Krajina. In particular, the Yugoslav Federal forces engaged in joint operations with the Bosnian Serb Army and the Army of the Republic of Serbian Krajina. This resulted in the commission of war crimes and additionally provided substantial material and personnel support, including the loan of senior officers.
The following section will address the question of whether Slobodan Milosevic, as a superior authority, may additionally and separately be held individually responsible for the war crimes committed by Serbian forces and their paramilitary agents by virtue of his command responsibility for the acts of those forces.
VI. Whether Slobodan Milosevic, as a superior authority, is individually responsible for the war crimes committed by Serbian forces and their paramilitary agents by virtue of his command responsibility for the acts of those forces
To present a prima facie case that an individual is liable for war crimes by virtue of his command responsibility, it must first be established that a criminal act has been committed. Section III above has already addressed the issue of the substantial evidence establishing the commission of war crimes by Serbian forces and Serbian paramilitary agents.
The second element of command responsibility is that the accused either failed to prevent or to punish the perpetration of the crimes by persons under his control. To establish that the accused failed to prevent the commission of war crimes, it must be demonstrated that:
1) the persons committing the war crimes were subject to the authority or control of the accused (superior authority);
2) the accused had either actual, constructive or imputed notice of the commission of the war crimes; and
3) the accused failed to take such appropriate measures as were within his power to prevent or punish the commission of the war crimes.
With respect to establishing superior authority, the same circumstances that were noted above in section IV to establish that the accused exercised power, influence, or control over those individuals or forces committing war crimes are relevant for establishing that the accused had "superior authority." Since section IV addressed the question of whether Slobodan Milosevic exercised power, influence, or control and thus superior authority over forces responsible for the commission of war crimes, this section will not address that question again, but will rather rely on the above section to have established that the persons committing certain war crimes were under Slobodan Milosevic's overall control, insofar as he had the authority to issue orders to his subordinate agencies to prevent those agencies themselves or their paramilitary agents that were committing illegal acts from doing so. Moreover, Slobodan Milosevic had the authority and power to see that offenders were punished.
To date, the Tribunal has indicted a number of persons for war crimes in the former Yugoslavia on the basis of command responsibility. (264) In this series of indictments alleging command responsibility, the Tribunal has not elaborated on its basis for determining that the accused had either actual, constructive or imputed notice of the commission of the war crimes or that the accused failed to take such appropriate measures as were within his power to prevent or punish the commission of the war crimes. This section is therefore unable to rely on the Tribunal's command responsibility indictments to elaborate on the criteria necessary to establish these elements of command responsibility.
The following review of evidence available in the public domain indicates that Slobodan Milosevic had both actual and constructive notice that Yugoslav Federal and Republic of Serbia forces and agencies under his control were engaged in the widespread commission of war crimes in the territory of the former Yugoslavia and that he not only failed to take appropriate measures -- as were within his power -- to prevent or punish those responsible, but that, in some instances, he actually rewarded those individuals responsible for war crimes.
A. Slobodan Milosevic had actual, constructive, and imputed notice of the commission of war crimes by Yugoslav Federal and Republic of Serbia forces and agencies and their Serbian paramilitary agents
Slobodan Milosevic had actual notice of the commission of war crimes in the territory of the former Yugoslavia as a result of reports made to him by the U.S. Helsinki Watch Committee and as the result of indictments of JNA officers under his control as forwarded to his office by the Tribunal, while he had further constructive and imputed notice by virtue of the fact that the involvement of forces under his authority and control was widespread, reported within official chains of command, and widely reported in the Serbian media.
1. Slobodan Milosevic had actual notice of the commission of war crimes by those under his superior authority by virtue of the fact that he received regular reports related to the activities of those responsible for war crimes
On 21 January 1992, Helsinki Watch sent a personal letter
to Slobodan Milosevic cataloging in over 25 pages the extensive atrocities that had been committed in the territory of the former Yugoslavia by JNA forces and their paramilitary agents. (265) This letter detailed the activities of paramilitary agents active in Croatia, including Arkan's Tigers, Seselj's Chetniks, and Miro Jovic's White Eagles and explicitly described the support provided to these paramilitary agents, including the supply of military and financial assistance, by the government of the Republic of Serbia. (266) The letter further detailed the participation of JNA forces and their paramilitary agents in the summary executions of prisoners and civilians, provided extensive listings of names of victims and locations where the atrocities were committed, and highlighted the massacre at Vukovar hospital. (267) The letter then chronicled the unlawful detention of civilians in concentration camps held in Croatia, Bosnia, and Serbia itself, and provided locations of the camps and descriptions of the inhuman treatment of their detainees. (268) Finally, the letter cited ample evidence of indiscriminate and disproportional attacks against civilians and civilian targets, including the destruction of cities, hospitals and churches, and the forced displacement and resettlement of civilians. (269)
Slobodan Milosevic not only acknowledged receiving the letter, but also acknowledged reading its contents by virtue of the fact that he chose to respond to the letter and deny its allegations. (270) If there were any need to verify these reports, Slobodan Milosevic could have raised the issue in his frequent meetings with Milan Paroski, Vojislav Seselj, and other individuals who directly carried out the alleged war crimes. (271)
Slobodan Milosevic additionally received actual notice of the war crimes committed by forces under his authority and control when he received the indictments of Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin on 7 November 1995 (272)for the crimes that they committed in the Vukovar massacre. As a controlling member of the Supreme Defense Council, which has official and actual authority over the Yugoslav Army, Slobodan Milosevic has the ability to punish these individuals for the commission of war crimes that have been brought to his notice by the indictment. By failing to take such action, or alternatively to transfer these individuals to the custody of the Tribunal, Slobodan Milosevic has become individually responsible, by virtue of his command responsibility, for the commission of their war crimes.
Further evidence of Slobodan Milosevic's actual notice is provided by his extensive attempts to deny the commission of atrocities by forces under his authority and control, and, in some instances, to deny even the existence of such forces. (273) The basic presumption is that, unless Slobodan Milosevic had notice of the possible commission of atrocities, he would not be in a position to deny the commission of those atrocities. For instance, as early as 1991, Slobodan Milosevic declared, "As is known, there are no paramilitary agent formations in Serbia; they are forbidden." (274) Slobodan Milosevic has also attempted to shift the blame for war crimes to rivals within the Serbian community. When negotiating with the Bosnian Serb leadership in October 1995, for example, Slobodan Milosevic placed all blame for the war on what he called "nationalist gang leaders." (275) In the same vein, a high-visibility (bold-faced font) editorial in the government-controlled Politika, which accompanied attacks in the same issue by Slobodan Milosevic
and other senior officials against the Bosnian Serb leadership, complained, "What has wounded us most as a people is that we have all been identified with a small group of criminals for whom war serves to give vent to their baser instincts and to plunder." Blaming what were termed Bosnian Serb "war leaders" for not having condemned the "crimes against humanity," the editorialist protested, somewhat disingenuously, that the people of Serbia had not been consulted about such issues as the shelling of Sarajevo or the Serbian attack against the "safe area" of Gorazde. (276) Even Slobodan Milosevic's wife, Mira Markovic, has sought to distance her husband's government from responsibility for any war crimes by blaming either unnamed perpetrators or, specifically, Vojislav Seselj after he fell out of favor. (277)
2. Slobodan Milosevic had constructive and imputed notice of the commission of war crimes by those under his superior authority by virtue of the fact that frequent and regular public reports were made of the activities of those responsible for war crimes
The actual notice of Slobodan Milosevic was augmented by his constructive and imputed notice that forces under his authority and control were responsible for the commission of war crimes, as these activities were reported routinely in a timely fashion both publicly and privately to the Republic of Serbia government.
With respect to official reporting of war crimes, the JNA high command and, presumably, the Supreme Defense Council received weekly after-action reports from the Yugoslav forces operating in Croatia and Bosnia. In one instance, a weekly after-action report (dated 23 October 1991) that was submitted to higher headquarters by a JNA lieutenant colonel operating in Croatia and that criticized paramilitary agent offenses, appeared in a Belgrade weekly. This report stated in part, I
n zone b/d 1.pgmd, there are several groups of paramilitary formations from Serbia, including the Chetniks, the 'Dusan the Terrible' units, and other self-styled volunteers whose main goal is not to fight against the enemy but to plunder people's property and to do their worst against the innocent ethnically-Croatian population. (278)
Information about the paramilitary agents' activities in the field was also regularly provided to the highest levels of the Republic of Serbia government. As General Tomislav Simovic, Minister of the Serbian Ministry of Defense, told Croatian Serb rebel leader Goran Hadzic, "Every day we had various information. The 'Dusan Silni' [Dusan the Terrible], 'Beli orlovi' [White Eagles], 'Srpske dobrovoljacke jedinice' [Serbian Volunteer Units]," and JNA units were operating in that area.... Various information came about their behavior." (279)< JNA officers who visited General Tomislav Simovic also informed him of the paramilitary agents' activities, as did journalists. (280) Even unsolicited communications, such as reports to Radmilo Bogdanovic and General Tomislav Simovic from Simo Dubajic who commanded a hard-line paramilitary unit in the Knin area, were sent to Serbian officials. (281)
The commission of atrocities was also widely reported in the Serbian press. For instance, Colonel Milorad Vucic,
commander of a JNA Mechanized Infantry Brigade, which was operating in Croatia, noted in an interview in the official military press that in December 1991:
Negative occurrences happened, particularly in relation to the treatment of the population, the treatment of their property, and their personal security. Personnel from some of [our] brigade's subordinate units protested to me with vehemence when they witnessed first-hand the criminal behavior by some individuals from various [paramilitary] groups, and sought earnestly that a stop be put to that. They simply do not want to die for such things. (282)
The constructive notice afforded to Slobodan Milosevic by these official and public reports was amplified by regular meetings between the commanders of the paramilitary agents responsible for the commission of war crimes and senior Republic of Serbia officials, who then reported on these meetings to Slobodan Milosevic. Serbia's State Security Service, for instance, was in direct contact with Dragoslav Bokan, field Commander of the White Eagles, and Vuk Draskovic's field commanders. (283) Paramilitary commanders also routinely visited General Simovic's office, (284) with Vojislav Seselj personally attending meetings frequently in the headquarters of the State Security Services of Republic of Serbia's Ministry of Internal Affairs, with no attempt to hide his visits. (285)
One of the purposes for the meetings was, in fact, to organize the operation of paramilitary units. Thus, most contacts with the paramilitary commanders were handled through Slobodan Milosevic's direct subordinates, with these supporting agencies having abundant information about the behavior of the paramilitary agents that they supported. These agencies would then coordinate their paramilitary agent-related activities with Serbia's Ministry of Defense. (286) For example, all dealings involving money and arms obtained for the paramilitary agents by Serbia's Minister of Defense through the banker Jezdimir Vasiljevic were routinely briefed to the civilian and military security agencies during the weekly meetings held at the Ministry of Defense. The Defense Minister, General Simovic, then "personally informed President Slobodan Milosevic" of this. (287)
Finally, imputed notice of the existence and activities of Serbian paramilitary units is provided by the fact that they operated quite openly in the Republic of Serbia with respect to their organization and recruitment. The paramilitary agents were set up and operated openly and, indeed, as was noted, with the participation of the government. Their members were recruited publicly and systematically within Serbia. (288) In fact, there was considerable publicity as paramilitary agents sought to attract followers (289)and as training was sometimes conducted quite openly, as in the case of the Serbian Guard, with public relations in mind. Serbia's police were usually present at such venues to keep an eye on the situation. (290) Thus, although Slobodan Milosevic has at various times denied any knowledge of the atrocities committed by forces under his authority or within his control, it is implausible that someone in his position would have been unaware of the existence and activities of the paramilitary agents or of their presence in Serbia and of their extensive relations with official agencies of the Republic of Serbia government. (291)
B. Slobodan Milosevic failed to take such appropriate measures as were within his power to prevent and punish the commission of war crimes by forces under his authority or control
With notice of the commission of war crimes by forces and agencies under his authority and control, Slobodan Milosevic failed to take such appropriate measures as were within his power to prevent and punish the commission of war crimes by those forces and agencies. Because of Slobodan Milosevic's substantial authority and control over both Yugoslav Federal forces and Republic of Serbia forces and agencies and because those forces and agencies responsible for the commission of war crimes, including Serbian paramilitary agents, operated from the territory of the Republic of Serbia, it was well within his power to prevent or punish the commission of their war crimes. In fact, however, not only did Slobodan Milosevic fail to prevent and punish the commission of war crimes, but, in many instances, also he facilitated and rewarded the commission of war crimes by his forces.
1. Slobodan Milosevic failed to take action within his power to prevent the commission of war crimes
Since Slobodan Milosevic was the official and actual holder of substantial powers in the Republic of Serbia, and as well with respect to Yugoslav Federal forces and agencies, it is apparent that he had the opportunity and means to prevent the commission of war crimes by his forces and agencies under his direct control. This section therefore focuses on the more difficult question of Slobodan Milosevic's ability to prevent the commission of war crimes by Serbian paramilitary agents. Even when this higher threshold is taken into account, however, there is significant evidence to indicate that, as the Republic of Serbia's material support was vital to operations of the paramilitary agents, including its assistance to the paramilitary agents in reaching Croatia and Bosnia, Slobodan Milosevic had ample opportunity to prevent the agents' operation and their consequent commission of war crimes. The degree of control that Slobodan Milosevic could exercise over the paramilitary agents was illustrated by subsequent events, when the Serbian authorities, usually as a result of domestic political rivalry, limited and in some cases eliminated completely the offending paramilitary agents' ability to act.
a. Slobodan Milosevic failed to prevent the commission of war crimes when it was within his power to do so
The need for Serbia-based paramilitary agents to obtain access to Croatia and Bosnia was an important element of their operations and was a key means of control over their activities. While individuals or small groups might reach a destination on their own, ensuring that larger groups did so, especially with the necessary speed and accompanying arms and logistic support, was a more complicated matter that required planning and often the use of state-controlled transportation and communications assets.
As one of the SRS Chetniks' paramilitary agents noted, he had been recruited in Sarajevo, had been instructed to go to Belgrade to join up, and from there left for the Croatian front in 1991 in a convoy of nine buses. (292) In many instances, Serbian police were present when paramilitary agents transited through Serbia to Croatia or Bosnia. In the case of the SPO's Serbian Guard, for example, Serbia's police did not seek to stop it from deploying to Croatia when this supported official objectives, but rather, according to a commander of the SPO's paramilitary agent, Serbia's police provided the necessary security for the "Nis Iron Battalion" when they gathered in Belgrade to prepare to set off for Croatia. (293) In a similar circumstance, the Republic of Serbia provided a police escort for Arkan's forces as they traveled in a convoy across Serbia on their way to Bosnia. (294)
When Slobodan Milosevic, for domestic political reasons, decided to restrict the transit of paramilitary agents from Serbia, it was well within his power to do so. For example, paramilitary agents deployed near the Danube in 1991 were not allowed by Serbia's police to travel to Slovenia, as the Republic of Serbia apparently was unwilling to become too deeply involved in a situation that had gone badly very quickly in military terms. (295) In May 1995, when Croatia moved against Western Slavonia, Slobodan Milosevic apparently preferred to see the situation end as quickly as possible in order to minimize the possibility of being drawn into a war and therefore did not want to see any paramilitary agents' intervention that might prolong the fighting. As a result, the Serbian authorities prevented paramilitary agents led by Vojislav Seselj and Arkan from reaching the area. The methods used were relatively simple. According to Vojislav Seselj, in his case, Slobodan Milosevic directed that bus companies cancel the charter arrangements that Seselj had made for transportation. (296)
Even when a paramilitary agent had its own transport capability, as in the case of Arkan's SDG, it was simply turned back at the Serbian border and told to go home since, as the Serbian police at the border told them, its members were citizens of Serbia. (298)
Beyond restricting transportation across Serbia and into Croatia or Bosnia, Slobodan Milosevic could, and did, restrict and even quash paramilitary agents when they lost their utility. Vojislav Seselj, for example, had already been arrested once in August 1990, prior to his rapprochement with Slobodan Milosevic. Subsequently, when relations between the two soured in the wake of a bitter political clash in 1993, Vojislav Seselj was again arrested and jailed for short periods, and his followers were dissuaded from any type of organized activity. As a result, his party and paramilitary agent lost much of their influence. (299) As noted by Tomislav Nikolic, Vice-President of Vojislav Seselj's SRS, "Incidentally, everything has changed significantly [since 1993]. Formerly, they ferried us to the battlefield in Republic [of Serbia] police and Army helicopters," now the paramilitary was obliged to hire out private transportation.(300) Likewise, the Serbian police arrested Vuk Draskovic in June 1993 in the wake of anti-Milosevic demonstrations and Draskovic's Serbian Guard, unable to operate, was disbanded in late 1994.
b. Slobodan Milosevic, in some instances, facilitated the commission of war crimes
There are many indications that Republic of Serbia agencies were not only passive but active instruments in providing and facilitating access by Serbian paramilitary agents to Croatia and Bosnia and that, in many instances, they provided the actual element of transportation for those forces.(301) In the case of Vojislav Seselj's SRS Chetniks, Branislav Vakic, an SRS Member of the Yugoslav Federal Parliament and formerly commander of a unit of Seselj's Chetniks operating in Croatia and Bosnia, noted in an interview, "When it was necessary to deploy seventy personnel quickly to Srebrenica [in 1992], Mile Ilic, the president of the local SPS [Slobodan Milosevic's party], supplied the bus at my request."(302) When Republic of Serbia agencies did not have readily available the appropriate transportation assets, they helped coordinate with the Yugoslav Army on behalf of the paramilitary agents, as was the case when Vojislav Seselj requested a helicopter from the Serbian Ministry of Defense to go inspect his paramilitary forces deployed in Croatia.(303) In another example, according to a commander of SPO's Serbian Guard, when a contingent of fifty Guard members deployed from Serbia to Borovo Selo, Croatia, Republic of Serbia police at the border cooperated in facilitating their crossing.(304)
In a related activity, Republic of Serbia forces and agencies assisted Serbian paramilitary agents in expelling non-Serbs from Bosnia via Serbia to other countries. For example, according to eyewitnesses, such as Serbian journalist Jovan Dulovic and American journalist Roy Gutman, who were at the state-owned railroad station in Belgrade when the state-owned chartered trains arrived, Muslims were deported from Kozluk by train through Serbia.(305) The level of systematic coordination in carrying out such expulsion was illustrated by one of Arkan's subordinates, Major Vojkan Djurkovic, who was in charge of expelling non-Serbs from Bijeljina. He described a process involving his "Commission," the Bosnian Serb authorities, and the Republic of Serbia in a three-sided cooperative effort. According to his account:
That travel [expulsion] was undertaken in the following manner: the State Commission for the Free Transfer of the Civilian Population had as its duty to inform the State Security Service of the Serbian Republic [of Bosnia] (Republika Srpska) of that travel. The latter, by fax, would then pass that on to that ministry in the Republic of Serbia which has jurisdiction. The transit [on to Hungary] would occur in broad daylight, at noon.(306) In the case of Arkan, his principal operational base was in Erdut, in eastern Slavonia, an area under Serbia's effective control. Arkan's organizational headquarters is located in the same exclusive Belgrade suburb as Milosevic's home.(307) On a number of occasions, Arkan's personnel performed public tasks in Belgrade itself.(308) Arkan has, in fact, publicly cooperated with Slobodan Milosevic within Serbia on Serbian security matters. During the summer of 1995, for example, joint patrols composed of Republic of Serbia police and Arkan's Tigers rounded up Serb refugees originally from Bosnia and Croatia, now living in Serbia, and forced them to return home to join the army.(309) Notably, those arrested were taken by the Republic of Serbia police to Arkan's base in Erdut for processing and training.(310)
Arkan and his men thus remained immune from the law. As Marko Nicovic, then Chief of the Criminal Division in the Belgrade Police, noted when asked about the status of Arkan and his Tigers, "Well, with such people who have proven their patriotism on the battlefield one must deal in a different manner. Those people have put the state in their debt. They must get special treatment, irrespective of whether or not they have a criminal record.... They have succeeded in achieving the title of hero."(313) He has sat as a deputy in the Serbian Parliament and his Serbian Unity Party [Stranka srpskog jedinstva], which styles itself as a "centrist party," openly ran a slate of candidates in the 1993 national elections under the slogan "Cherishing the best traditions of the Serbian nation." Arkan announced in March 1996 that his Serbian Unity Party would again take part in upcoming parliamentary elections in Serbia, Montenegro, and the Bosnian Serb Republic.(314)
In a limited number of cases, Slobodan Milosevic has sought to punish those responsible for the commission of war crimes, but only in cases where a rift had developed between a paramilitary agent and the government for political reasons, as in the case of Vojislav Seselj, or once the onus of ties to a paramilitary agent began to outweigh a paramilitary agent's utility. For example, such action led to the sentencing of several apparently expendable individuals from rival movements or free-lancers for ethnically-motivated killings committed within Serbia.(315)
Slobodan Milosevic, however, has remained hesitant about putting key Serbian paramilitary agents on trial or transferring them to the custody of the Tribunal. In large part, this reluctance is based on the concern that these individuals might seriously incriminate Slobodan Milosevic himself. In late 1994, for example, the Vuckovic brothers, the commanders of the "Yellow Wasps" paramilitary agent, were put on trial for alleged atrocities committed in Bosnia. There was widespread local media coverage of the opening of the trial, and the intent may have been to show that the government was serious about prosecuting war crimes.(316) The trial stalled, however, as one of the accused stubbornly maintained that he had been acting as an operative of the Republic of Serbia's Security Service and claimed that the Security Service now wanted him to plead insanity and had assured him that he would then no longer be bothered. The defendant began to name names and sought to have police officials testify at the trial. The trial was postponed repeatedly, and, as of early 1996, the witnesses allegedly still could not be made available.(317)
In the future, those persons who may be prosecuted or handed over to the Tribunal are likely to be low-level operatives with limited knowledge of the linkages involved with higher echelons, thereby minimizing potential derivative liability for Slobodan Milosevic. Thus, two former Bosnian Serb Army soldiers who participated in the Srebrenica massacre were handed over after international pressure was exerted, although they very likely have little personal knowledge of any role Slobodan Milosevic may have played in the commission of war crimes.
b. Slobodan Milosevic permitted actions by agencies under his official control that legitimized individuals responsible for the commission of war crimes
Far from exercising his authority to punish members of the paramilitary agents or others in his chain of command involved in the commission of war crimes, and thus prevent them from committing crimes, the tolerance and often active support that Slobodan Milosevic's government gave to the paramilitary agents and other subordinates lent the war criminals a certain legitimacy and legal standing in the eyes of public opinion without which it would have been considerably harder for the paramilitary agents to recruit and operate or for Republic of Serbia officials to aid and abet such actions. It was also the Serbian government that authorized, or at least allowed, activities such as Jezda Vasiljevic's and Dafina Milanovic's fraudulent banking schemes, thereby helping to finance and equip the Serbian paramilitary agents.318
In the case of Serbian paramilitary agents, the favorable coverage provided to paramilitary commanders in the state-run media, praise from government officials, and exemption from prosecution all contributed to legitimizing the activities of the paramilitary agents.319 A glossy training film on behalf of Arkan's SDG was even shown on state-run Belgrade TV.320 In addition, Arkan and Vojislav Seselj were given wide coverage on television while active in Croatia and Bosnia. This included Arkan's account of how he had "liberated" the Zvornik area.321 The state-run press also continued to give organizations affiliated with paramilitary commanders, such as the "Captain Dragan Fund," favorable publicity when their activities coincided with official policy.322 Similarly, as long as Vojislav Seselj was an ally of Slobodan Milosevic's, the state-run media gave him frequent coverage, including interviews.
Slobodan Milosevic's benevolence also extended to immunity from criticism for those paramilitary agents who were in favor with the government. Stevan Mirkovic, for example, a former JNA general and senior official of the SK-PJ, suggested to Mira Markovic, Slobodan Milosevic's wife and the leader of the SK-PJ, that they should condemn Vojislav Seselj. At the time, however, Seselj was still cooperating with Slobodan Milosevic, and she responded, "Let's not [attack] him; he is one of ours."323 Some paramilitary agents even received certificates of appreciation from Serbia's government agencies, thereby lending an aura of respectability and legitimacy to even the most extreme groups and individuals. Thus, Vojislav Seselj's lieutenant Vakic reported that, "We also have a letter of thanks from the Serbia Ministry of Internal Affairs' Unit for Special Operations, signed by its commander, Obrad Stefanovic."324
c. Slobodan Milosevic, in some instances, promoted those individuals responsible for the commission of war crimes
Rather than punishing subordinates involved directly in or aiding and abetting the commission of war crimes, Slobodan Milosevic has been known to reward them, as was the case with the March 1996 promotion by the Republic of Serbia Presidential Council of Radovan Stojcic Badza (Deputy Minister of Internal Affairs and Head of the Department of Public Security) to Colonel-General -- the highest rank -- in the Republic of Serbia's uniformed police force.325
Similarly, subsequent to their participation in the siege of Vukovar and the execution of the Vukovar hospital captives, Colonel Mile Mrksic was promoted to the rank of general in the Yugoslav Army. He subsequently assumed a position in the army of the Republic of Serbian Krajina. Major Veselin Sljivancanin was promoted to the rank of colonel in the Yugoslav Army.326 Subsequent to his indictment by the Tribunal, Veselin Sljivancanin was, in February 1996, again promoted. As a member of the Supreme Defense Council, Slobodan Milosevic would have authority and control over these promotions.
The above review of information available in the public domain indicates that there is substantial evidence to establish a prima facie case of the command responsibility of Slobodan Milosevic for the commission of war crimes in the territory of the former Yugoslavia on the basis that Yugoslav Federal forces, Republic of Serbia forces and agencies, and Serbian paramilitary agents subject to his superior authority were responsible for the widespread and systematic commission of war crimes and that Slobodan Milosevic failed to take appropriate measures to prevent or punish the commission of these crimes. The evidence examined above indicates that all of the elements of command responsibility have been satisfied, in particular the element concerning Slobodan Milosevic's actual, constructive, and imputed knowledge of the commission or impending commission of war crimes by forces subject to his superior authority, and that not only did he fail to prevent and punish the commission of those crimes, but also that he frequently aided and abetted their commission327 and rewarded those individuals responsible for committing the war crimes.
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