Bid to Throw Out Milosevic Genocide Charge
“PA” April 2004
The UN war crimes tribunal received a motion today to dismiss genocide
charges against former Yugoslav President Slobodan Milosevic for lack
of evidence.
The motion came in a 95-page brief by three amici curiae, or friends of
the court, who were appointed to help protect the interests of the former
Yugoslav president and ensure a fair trial.
The motion also sought immediate acquittal on other charges related to
the wars in Kosovo, Croatia and Bosnia that convulsed the Balkans during
the 1990s.
The three independent lawyers argued there was no evidence that
Milosevic specifically intended to exterminate Muslims and Croats during the
1992-95 Bosnian War, as alleged in his indictment.
“There is no evidence the accused planned, instigated, ordered,
committed or otherwise aided and abetted in the planning, preparation or execution
of a genocide or genocidal acts,” the amici wrote.
The prosecution also failed to prove that any of Milosevic’s subordinates committed genocide, which requires proof they had the prior intent to destroy a
racial, ethnic or religious group.
The genocide charges “should be excised from the Bosnia indictment at
this stage of the proceedings”, the motion said.
It was not clear when the tribunal would rule on the motion.
Milosevic is defending himself against 66 counts of war crimes. The
amici were appointed because he has no prior courtroom experience even though
he was trained as a lawyer.
Milosevic is charged with one count of genocide and one of complicity
in genocide for the massacre by Serb forces of more than 7,000 Muslims in
the UN-protected enclave of Srebrenica in July 1995.
The motion had been widely expected. Independent analysts agreed the
prosecution case on the genocide charge was weak, and the prosecutors
themselves reportedly were bitterly divided over whether to include the charges in
the indictment.
Prosecutors concluded their case against Milosevic last month, two
years after his trial began in February 2002. Milosevic is due to begin
presenting his defence on June 8.
The motion came amid a reorganisation of the tribunal following the
unexpected resignation last month of presiding judge Richard May due to
an undisclosed illness.
Our Comments
At the beginning of his trial in 2002 Slobodan Milosevic filed a motion claiming that the Hague Tribunal was an illegal court. This presented an existential threat to the ICTY, since the claim was undoubtedly true. Three or more of the UN’s 5 founding countries (including the US and the UK) had made it plain to the UN Charter drafting team that they would not join the UN if the Charter included any provision to create an international court. The ICTY disregarded all the cardinal principles of international law by referring the motion to its own appellate committee which of course concluded that the ICTY was a legal court.
The motion submitted by the amici curiae in 2004 was extremely powerful. The prosecution case, which had lasted more than 2 years, had failed to present any evidence of genocide. Hundreds of anonymous witnesses had given their testimony, many by audio link, but this was not backed with forensic and DNA evidence of any kind. Many of the witnesses showed obvious signs that they had been heavily coached before giving evidence. The International Commission for Missing Persons, a Bosnian Muslim-staffed organisation, failed to provide the court with any of the ‘primary’ scientific evidence it claimed to have gathered. The verbal account of their findings delivered by their Head of Science was simply written into the record as established fact.
A painstaking academic study of the Milosevic trial revealed that 92% of the testimony given in the Milosevic trial was hearsay. None of this would have been admitted as evidence in a proper court. But it was all they had – because there had been no formal investigation of massacre claims, the prosecution had no means of making a competent legal case against Mr Milosevic.