Global Policy Forum

By Edgar Chen

Slobodan Milosevic concluded his direct examination of General Radomir Gojovic, a former military prosecutor and judge who once held the position of Chief of the Legal Staff of the Yugoslav Army (JNA) and President of the Yugoslav Military Court. Over the last two days, General Gojovic testified about efforts made by the Yugoslav Army to observe and enforce principles of international humanitarian law during the Kosovo campaign.

General Gojovic presented evidence that military prosecutors investigated and prosecuted war crimes committed by Yugoslav forces in Kosovo during the 1999 conflict, including the "discovery" and exhumation by Yugoslav forensic teams of over a hundred bodies in the village of Izbica. Mr. Milosevic appeared to use this evidence to prove that he was not criminally liable for atrocities committed in Kosovo under the theory of command responsibility, as provided for by Article 7(3) of the Tribunal's statute. The statute provides that a superior is criminally responsible for the acts of his subordinates "if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."

General Gojovic's testimony however, revealed little about actual punishments meted out by the Yugoslav government for war crimes committed in Kosovo. Instead, by describing the crimes that his office allegedly investigated, the witness largely confirmed that Yugoslav forces had in fact committed mass murder in the province.

Yugoslav Forces Instructed to Abide by International Humanitarian Law

Mr. Milosevic presented several examples of pamphlets containing codes of conduct that were distributed to all uniformed personnel of the Yugoslav armed forces. Principles of the International Committee of the Red Cross were translated into Serbian Cyrillic and instructed all soldiers to respect civilians, treat enemy prisoners humanely and observe the laws of war. General Gojovic testified that Yugoslav military officers were given strict orders to enforce these and other principles of international humanitarian law. General Gojovic provided orders from the Supreme Command Staff, including one that he himself drafted which was signed by General Ojdanic (also indicted by the ICTY) that instructed soldiers to abide by the Geneva Conventions.

Majority of Crimes Investigated Were Minor, But Records Also Document Mass Murder

General Gojovic presented evidence that the Yugoslav military judicial organs prosecuted thousands of cases involving Yugoslav soldiers during the time of the NATO bombing of the former Yugoslavia. A majority of those prosecutions however, turned out to be for such violations as desertion, failure to appear for conscription, petty theft and other minor offenses.

There were those charged with "crimes against life and limb" (e.g. murder, manslaughter, assault) also, but the evidence demonstrated that few of these investigations and prosecutions were specifically for war crimes, as defined by international humanitarian law. General Gojovic did testify that an investigation of the gravesites at Izbica as well as several other incidents including shootings of Albanians without justification and the execution of Albanian prisoners and the disposal of their bodies down a well (mostly, General Gojovic was sure to note - committed by non-professional reservists) were documented by Yugoslav officials. In one particular troubling incident, a Yugoslav Army (VJ) captain ordered his men to shoot an unarmed Albanian in a marsh as target practice in order to calibrate their rifles. The witness was unclear, even upon cross examination as to the final disposition of these cases - it remains ambiguous whether the accused in these cases were ever convicted and punished.

The standard however, is not simply about punishment: a commander may not escape criminal liability merely by punishing the perpetrator afterwards if he knew or had reason to know that his subordinates were about to commit war crimes and he failed to prevent such acts.

Izbica Controversy Lingers

General Gojovic's statement that Yugoslav military forensic teams did in fact exhume bodies at Izbica adds ammunition to allegations that Milosevic's forces tampered with grave sites in order to mask the extent of killings. On cross examination, Prosecutor Geoffrey Nice questioned whether the Yugoslav investigation of the Izbica village gravesite was conducted only because of international outrage and NATO's use of satellite imagery suggesting a mass grave. General Gojovic strongly denied this.

Witness Evokes the Yamashita Defense

When cross-examined as to why certain notorious atrocities were not reported up the chain of command or investigated by his office, General Gojovic testified that NATO bombing "dispersed" units and that lines of communication to relay such information were effectively cut by NATO. General Gojovic testified that the work of the military prosecutors and courts would have been far more thorough had NATO not intervened and expelled Yugoslav forces from Kosovo.

In doing so, General Gojovic evoked the defense employed by Japanese General Tomuyuki Yamashita during his war crimes trial by American forces following the fall of the Philippines at the end of World War II. General Yamashita argued that American bombing effectively cut his lines of communication and prevented him from discovering atrocities committed in the field by soldiers under his command. This defense was rejected in a controversial decision. Today's standards of command responsibility flows in part from the Yamashita precedent and will hold commanders responsible if they knew or "had reason to know" of war crimes committed by subordinates and yet failed to prevent or punish such acts. Unlike in the Yamashita case, where the Japanese commander was held strictly liable for acts committed by his subordinates even without his knowledge, the ICTY trial chamber may take into account the degree of effective control and material ability required either to prevent the crime or to punish the perpetrator

Judge Instructs Defendant to Link Evidence to Specific Allegations in Indictment Prior to Testimony

During yesterday's session, Judge Robinson chastised the Accused for presenting evidence that was not directly related to specific allegations made in the indictment. He instructed Mr. Milosevic to provide the Chamber with the precise allegation in the indictment that the witness testimony would address. Mr. Milosevic countered that many of the charges alleged in the indictment were made on a general level. For example, allegations of sniping and shelling of Sarejevo are generally set forth, but are in fact, supported by a precise schedule of specific instances of shelling and sniping complete with lists of victims.

General Gojovic had testified as to his personal experience being sniped at in Sarajevo in 1991 in order to support the Defense contention that charges of sniping attributed to Serb or VJ forces were more properly ascribed to Muslim forces. The testimony was allowed not as a rebuttal to the specific instances alleged in the indictment (although General Gojovic did single out sniping at Novi Grad in Sarajevo as alleged in the indictment), but as helping to establish the background on conditions in Sarajevo in which the alleged crimes in the indictment took place.

Credibility of American "Academic" Broken Down

Mr. Milosevic's previous witness, Barry Lituchy, an American professor of history, provided videotaped interviews with Albanian refugees who stated on camera that they suffered attacks at the hands of the KLA. The testimony was intended to show that Kosovar Albanians (as well as Roma and Serbs) fled not from persecution by Mr. Milosevic's forces, but because of the NATO bombing and KLA actions. These interviews were presented as objective, fact research about the plight of refugees fleeing Kosovo.

While the prosecution attacked the methodology of how these testimonials were collected and also noted that the translation of the interviews was interlaced with commentary, the most effective attack was on the personal credibility of the witness. Mr. Nice introduced writings by the witness that demonstrated support for military victory by Serbs in Bosnia and Croatia during those wars ("we must do everything in our power to help the Serbs achieve military victory" he is quoted as writing) and a staunchly anti-NATO rhetoric which had Mr. Lituchy comparing former U.S. President Clinton to Hitler, as a genocidaire. When Mr. Nice questioned whether the witness implied that Clinton was worse than Hitler, Mr. Lituchy shrugged and simply answered "I don't believe that Hitler was guilty of sexual crimes." The cross-examination became heated as Mr. Nice suggested that the witness advocated bloodshed to achieve a "reckoning of crimes by American fascism" (referring to the NATO campaign). Mr. Lituchy staunchly denied this but did concede that bloodshed might be necessary in defense against perceived crimes against humanity.