Global Policy Forum

Bruce Wallace

Del Ponte is confident of a genocide conviction, despite the lack of a 'smoking gun.' Former Yugoslav leader must now prepare his defense.

War crimes prosecutors' two-year case against Slobodan Milosevic came to a sudden close Wednesday, with chief prosecutor Carla Del Ponte dropping her final witnesses and acknowledging that she had not produced evidence directly linking the former Yugoslav leader to genocide in the Balkan wars. "I know that I don't have the smoking gun in the count of genocide," Del Ponte said in an interview. But she expressed confidence that she ultimately could convince the judges that Milosevic was guilty of the crime. "We proved the fact" that genocide occurred, Del Ponte said, but added that to convict someone of the crime, prosecutors must prove the defendant had a "specific intent" to destroy another people. "Genocide needs a specific intent, it is a subjective element, and it is very difficult to prove if you don't have a guilty plea or witnesses," she said. Del Ponte chose to rest her case early in an attempt to speed up the much-delayed trial. The prosecution that began in February 2002 had been expected to last a year, but 65 court days were lost because Milosevic has been ill. Prosecutors worry that the stuttering pace is undermining the court's credibility and that Milosevic could die in prison without a verdict. "It's a nightmare," Del Ponte said. "The doctors said he is suffering fatigue — fatigue! — and high blood pressure, and decided it's better not to appear in court. So we decided to close the case without any further witness appearances." Milosevic is charged with 66 counts in all. Most legal observers say convictions are likely on the charges of war crimes, crimes against humanity and complicity in genocide. But Del Ponte appeared to be conditioning world opinion for the possibility that Milosevic might be acquitted of the most serious charge against him: that he directly ordered the genocidal massacre of about 7,000 Bosnian Muslim men and boys by ethnic Serb forces when they overran the town of Srebrenica in 1995. That slaughter has been defined as an act of genocide in previous cases before the tribunal, and prosecutors have focused on trying to tie Milosevic to the actions of the Serb troops on the ground. Failure to do so could provoke a backlash against the tribunal among victims. "It's going to look like a defeat," Samantha Power, Pulitzer Prize-winning author of "A Problem From Hell: America and the Age of Genocide," said in an interview from Boston. "Victims all over the world who have been targets of genocide pine to be anointed with the international recognition [that] they have suffered the ultimate crime, so the Bosnian Muslims are going to say: 'What? Are you saying we suffered less?' And an acquittal will be a victory for Serb nationalists loyal to Milosevic, who will take it as proof they didn't commit genocide, that it was just a war." Apart from the genocide charge, Del Ponte and her team say they have demonstrated Milosevic's role in planning and supervising the "ethnic cleansing" of Muslims and Croats by Bosnian Serbs. Testimony and Milosevic phone conversations intercepted by foreign intelligence agencies indicate he played an extensive leadership role in directing preparations for a Balkans-wide ethnic war. But the team also says it went into the prosecution phase two years ago expecting to acquire documents and other evidence to buttress its case — only some of which has emerged. Much of it, Del Ponte says, remains locked up in Belgrade by the Serb government, which has refused to hand it over. "Political considerations are obstructing us," she said.

Others, however, say Del Ponte is searching for scapegoats. "It was Carla Del Ponte who indicted him for genocide, and if she didn't have the evidence at the time, she shouldn't have brought the genocide charge in the first place," said Avril McDonald, head of international law at the Asser Institute in The Hague. "Anyway, an acquittal doesn't mean there wasn't a genocide. It's just possible that, in this case, Milosevic wasn't the guy who cooked it up. It would be worse to convict him without evidence." At its start, the Milosevic prosecution raised expectations for a new era of international justice. But with no end in sight, the case increasingly seems to be trying the international community's patience. Milosevic himself has contributed to the delays by acting as his own defense counsel and engaging witnesses in long cross-examinations. New uncertainty arose last week when Judge Richard May announced he would officially retire May 31 because he is gravely ill with an undisclosed ailment. His departure from the court's three-judge panel opens the case to a host of potential legal challenges from Milosevic, including an appeal for the trial to be restarted with a new judge. Del Ponte dismissed the possibility of a mistrial, insisting that a new judge could get up to speed on the case by reviewing the 30,000 pages of testimony. With the prosecution finished, Milosevic — a lawyer by training — now has three months to prepare his defense. He must produce a witness list by April 1. In the past, he has suggested that he would demand nothing less than the who's who of 1990s politics, expecting to interrogate Bill Clinton and Tony Blair. When asked what to expect in the next phase of the trial, Del Ponte shrugged, vowing only to push the pace, with no cross-examination of Milosevic's witnesses unless necessary. "The defense wants to delay, we want to speed up," she said. She grew subdued when asked whether her case against Milosevic would have been easier had Gen. Ratko Mladic and Radovan Karadzic, the two key fugitive war crimes indictees, been in custody in The Hague. "Of course," Del Ponte said. "But time is out. Now it's over."