The Boston Globe 

February 26, 2004 ,Thursday ,THIRD EDITION 



BYLINE: By Charles M. Sennott, Globe Staff 

THE HAGUE – The prosecution in Slobodan Milosevic’s war crimes trial moved yesterday to rest its case two days early as the chief prosecutor conceded her team had not produced “the smoking gun” to convict the former Yugoslav president of genocide, the most serious charge against him. 

“I know that I don’t have the smoking gun on the count of genocide, and we will see what the trial chamber decides,” chief prosecutor Carla del Ponte said in an interview only minutes after she signed a motion to end the prosecution’s two-year case. 

“The facts are not in dispute by us. We can prove the facts, but genocide needs a specific intent, a subjective element, and it is very difficult to prove,” del Ponte added. 

But she insisted prosecutors were confident they had established Milosevic’s guilt on the litany of other charges of crimes against humanity and breaches of the Geneva Conventions for his role in the savage campaign of ethnic cleansing in the Balkans throughout the 1990s. 

Conviction on those charges, specialists in international law and trial observers say, would almost certainly ensure that Milosevic would spend the rest of his life in jail. 

Del Ponte said Belgrade authorities had jeopardized the case for genocide by failing to provide the prosecution access to documents from the state archives. Her decision to rest the prosecution’s case two days early was due, she said, to the ill health of Milosevic and the chief judge in the case. 

The motion – which is likely to be approved by the UN-appointed panel of judges at a hearing on Monday – would require the prosecution to forgo the testimony of four more witnesses and the submission of an unknown number of documents. 

But del Ponte said that measure had to be taken because of what she called the “nightmare” of delays in the trial caused by Milosevic’s poor health. 

On a doctor’s recommendation, the trial has been suspended for nearly two weeks because of the 61-year-old Milosevic’s high blood pressure. His various ailments, including heart trouble and fatigue, have resulted in more than 100 days of delays in the two years since the trial got underway. 

There were also concerns, del Ponte said, of further delays caused by the announcement on Sunday that the presiding judge, Richard May, 65, would resign in three months because of a serious illness that was not identified. 

May, a British judge who presided over two years of hearings and nearly 300 witnesses, said in a letter to the tribunal that his illness made it impossible for him to continue. 

If the prosecution’s motion is accepted on Monday, it would trigger a three-month recess in the trial, which del Ponte said would allow time for a new judge to be appointed and get caught up on the details of the case before Milosevic, who is a trained lawyer, begins his own defense. 

Del Ponte said that under the rules of the court, the United Nations was permitted to impose a new judge. Nonetheless, she conceded it was possible that Milosevic would seize on the development to file for a mistrial. 

She said there was “absolutely no risk” of mistrial because the entire proceedings have been videotaped and transcribed, which would allow a new judge to pick up the case when Milosevic begins his defense. There are some 30,000 pages of transcripts and 600,000 pages of filings by the prosecution, as well as hundreds of hours of videotaped testimony by witnesses. 

Amid the turmoil in the case and new questions over whether the prosecution clearly established a genocide case against Milosevic, international law specialists are concerned about where the case appears to be headed .

“An acquittal would have serious implications not only for attempts to prosecute genocide in the future, but also for efforts that might be undertaken to prevent it from occurring,” said Stacy Sullivan, a research director who has followed the Milosevic trial for the Institute for War and Peace Reporting, a London-based nongovernmental organization. Sullivan recently published a paper analyzing the consequences of an acquittal on genocide charges. 

“It would also disappoint victims, and provide ammunition for those who would deny that genocide took place,” Sullivan added. 

Samantha Power, author of the Pulitzer Prize-winning book “A Problem From Hell: America in the Age of Genocide, ” which examines why some countries have failed to prevent genocide, said that del Ponte’s acknowledgments on the prosecution’s genocide case were “very significant.” 

“It’s the first time she said this publicly. It seems the prosecution is preparing themselves, the people in the Balkans, and people all over the world who care about international law for an acquittal on the count of genocide, ” said Power. 

Milosevic is alleged to have orchestrated the Serbian military campaign that led to the fracturing of Yugoslavia , and to have presided over the atrocities that took place in Bosnia ,Croatia , and Kosovo. 

In order to prove genocide, the UN-appointed tribunal has set the bar high, saying the prosecution needs to establish not only that Milosevic orchestrated the crimes, but that he did so with a specific intent to destroy Bosnian Muslims as a people. 

Prosecutors in the tribunal have so far attempted to convict three other suspects on charges of genocide. 

Radislav Krstic, the Bosnian Serb general charged with orchestrating the 1995 Srebrenica massacre of more than 7,000 Muslim men and boys, was found guilty of genocide and sentenced to 46 years .

He has filed for appeal. 

Goran Jelesic, a self-described “Serbian Adolf,” was the commander of the Luka camp, where thousands of Bosnian Muslims and Croats were imprisoned, beaten, and killed . He pleaded guilty to war crimes, but not guilty to the genocide charge and faced trial for that single count. 

The judges ruled in October 1999 that the prosecution failed to make its case. 

And Milomir Stakic, the mayor of Prijedor, was charged with the deaths of thousands in a network of prison camps in the town, as well as a campaign of ethnic cleansing of tens of thousands from the area. He was sentenced to life for his role in the killing and ethnic cleansing, but was acquitted on the genocide charge. 

Those rulings indicate that the court will rule narrowly on the charge of genocide, and suggest that the prosecution may not have succeeded in establishing its case, international law specialists say. 

Asked whether she was concerned about the impact an acquittal on genocide charges could have on victims, del Ponte said, “I don’t think it will be a great difficulty for the population as such.” 

“If you meet with the victims of these crimes, they want justice, and justice for the victims is that the guilty stay in prison for life. That is what they want, punishment,” she said.