As war crimes trial rolls on, witnesses are suffering fresh trauma

Guardian

"There are too many variables", says Dr Eric Baccard, the chief forensic pathologist of the International Criminal Tribunal for former Yugoslavia. He sounds a bit defensive.

"Isn't it routine training to aim for the head and trunk?", Mr Milosevic comes on strong. "That's not a question for the witness", Richard May, the presiding British judge, jumps in protectively.

After four months of the former Yugoslav President's trial on charges of crimes against humanity in Kosovo, Bosnia, and Croatia Slobodan Milosevic is still on the attack. Far from being embarrassed by the long list of grave charges against him, he patently enjoys cross-examining the 60 witnesses who have appeared so far. He acts as though he is the prosecutor.

The trial's opening blaze of publicity is long gone and the press and public galleries are barely a quarter full for what is rightly billed as the biggest trial in Europe since Nazi leaders were in the dock at Nuremberg.

Yet Mr Milosevic does not care about the meagre attendance. He is playing to the invisible audience back home in Serbia which was sceptical of the tribunal before their former leader took the stand. He wants to prove them right by showing the witnesses are all liars and the court is stacked against him.

Today the subject is the Racak massacre of January 1999, often described as the trigger which Nato used to justify its bombing of Yugoslavia two months later. The bodies of forty Albanians were found in a gulley.

Albanians say they were peaceful villagers, executed in cold blood by Yugoslav forces and Serb police. The Yugoslav authorities said some were fighters for the Kosovo Liberation Army (KLA) and others were civilians who died in cross-fire in various parts of Racak when the Yugoslavs came under attack. They claimed the KLA moved the bodies into the gulley after the combat was over in order to pretend it was a massacre.

Mr Milosevic is focusing on the fact that 23 of the dead had head wounds. He suggests this is because the Serb police were well-trained marksmen. He queries whether autopsies can determine the distance from which weapons were fired, implying it is not clear the men were killed at close range.

He conveniently ignores that part of the written evidence where the pathologist testified that more than half the dead were shot in the back of the head or trunk. His aim is to pick holes in the prosecution case, highlight discrepancies, and hint at alternative explanations.

Silence is not part of his armoury. Although he declined to make a plea when the trial started in February, refuses to accept the jurisdiction of the court (He calls the judge "Mr May", never "Your Honour") and rejects defence lawyers, he is conducting a ferociously energetic defence on his own. He uses all his available time and regularly demands more.

Whether witnesses are professional experts, Kosovo Albanian politicians, British army officers, or ordinary peasants who survived massacres, Milosevic treats them all as though they are evading the truth. No witness is too humble to escape his attention. He tries to catch them out in minor contradictions or lapses of memory which he builds up as though they are major flaws in their case.

At the Nuremberg trials death camp survivors were able to speak freely before the Nazi leaders who ordered mass killings. In the Hague, by contrast, ethnic Albanian villagers find themselves cross-examined by the very man whose forces killed their loved ones.

Some victims hope for catharsis from their chance to confront the man who caused them pain or bereavement. Few get it. Shukri Gexhaliu, a doctor who was on a convoy of civilians which Serb police stopped before executing most of the men, thanked Judge May profusely at the end of his evidence for having had the chance to testify. Most are not so composed by the time Mr Milosevic finishes with them.

Visibly distressed by Mr Milosevic's fierce questioning Agim Zeqiri told Judge May he had a sleepless night and asked to be let off testifying for a second day. An 80-year-old peasant, Sadik Januzi, was the only man to emerge alive from a massacre in Izbica after hiding under bodies which fell around him. "You haven't asked about what I went through at the massacre", he said in despair when Milosevic said he had no more questions.

Boredom and depression are every prisoner's worst enemies. For Mr Milosevic who has already been in detention for over a year the trial is a psychological escape, and there should be no surprise that he arrives every day with great energy for the fray and usually well-prepared with details about a witness or his village. He has a team of legal advisers who sit in the public gallery as well as others in Belgrade who keep him well supplied with documents. He can ring them in breaks in the proceedings. He also has access to a fax and a computer and printer in his cell.

The tribunal has a special "Victims and Witnesses section" which organises their accommodation and looks after them in the Hague. "Many have never left their country, let alone their villages", says Danielle Cailloux, the section head. In the Milosevic case, as in all others, prosecution lawyers have "proofing" sessions with every witness before they enter the chamber to explain the procedure and go through the written statements which were submitted earlier.

But in what appears to be a surprising lack of sensitivity about the special nature of this case the prosecution team has never invited psychologists to take part in these sessions so as to warn witnesses about Mr Milosevic's bullying and prepare them for the strain. "This is not the most difficult trial we have here. In some of the Bosnian cases women had to confront men who raped them", says Ms Cailloux, who was a judge in her native Belgium. "But for Kosovo Albanians Milosevic was their former president. They have never seen him before. It can be difficult."

Many witnesses call for doctors and have sleepless nights in the hotel after their appearance, she says.

Mr Milosevic aims to show that Albanians lived well in Kosovo, and that the demand for independence was not motivated by Serb discrimination. It was a political strategy encouraged by the west and led by terrorists in the KLA, who intimidated and killed other Albanians as well as Serb policemen. Similarly, it was Nato bombing, and not Serb repression which caused Albanians to flee the province.

Most Albanian witnesses deny ever having seen a KLA person in their villages, a point which Mr Milosevic continually exploits to try to prove their whole testimony is worthless. The main charge - that regardless of the existence of KLA fighters Mr Milosevic ordered the use of excessive force against unarmed civilians - gets lost. Albanians in Kosovo are following the trial closely. "In the Balkans there is this mentality is that you are either a patriot or a traitor", complains Baton Haxhiu, a co-founder of the Pristina newspaper, Koha Ditore, who gave evidence against Milosevic last month.

One morning in the Hague I listened to Adnan Merovci, the chief aide to Ibrahim Rugova, the then unofficial "president" of Kosovo. The two men were under Serb house arrest during the Nato bombing but were regularly taken to Belgrade to see Mr Milosevic. Sometimes they received visits from Serb leaders in Pristina. Mr Milosevic claimed this showed friendly negotiations were underway and the men were under no duress.

Mr Milosevic asked Mr Merovci if he knew Mr Rugova had given the president of Serbia a present of a piece of mineral ore during one of the Pristina meetings. Mr Rugova is a passionate amateur geologist with a notorious reputation for off-loading stones on every visitor. Yet Mr Merovci denied any present had been handed over.

"But that was shown on television. You could clearly see the gifts", Mr Milosevic commented triumphantly. Kosovo Albanian journalists in the press gallery were in fury. "Why do they feel they can never agree with Milosevic, even on trivial points?" one muttered.

Mr Milosevic constantly complains the court is unfair to him. In fact, the trial's procedure is stacked in his favour. By rejecting the court's jurisdiction he won several advantages. For one thing, he looks more dignified than anyone else. Officials working for Carla del Ponte, the chief prosecutor, were afraid he would take no part in the trial and switch off the headphones which give translations. So they rigged up a small loudspeaker in front of Mr Milosevic's desk, just out of his reach. As a result, he is the only person who never has to put on clumsy headphones. He lolls back in his swivel chair, often with his left arm draped round the back of the chair in a pose of relaxed contempt. At one point when the judge told him not to argue with the witnesses, Mr Milosevic snapped: "Mr May, I only insist on getting an answer. I am not aware of having quarrelled with any witnesses. These false witnesses do not merit my arguing with them."

By refusing to plead, he will also escape the necessity to have to take the witness stand himself. Although Judge May regularly cuts him off for straying into political irrelevancies Mr Milosevic is allowed more time because he is conducting his own defence. He was allowed a long opening statement at the start of the trial, which would not be allowed in a normal criminal case. When he starts calling his own witnesses next year, again he will be given the chance to make a long statement.

Like a filibustering US senator, he insists on cross-examining every witness. Under pressure of time, the prosecution has curtailed the list of witnesses. Because their evidence is "cumulative", each one telling a similar story, they were permitted to give it in written form. Mr Milosevic uses his right to question them for an hour while the prosecution only has five minutes to introduce the witness.

Florence Hartmann, the chief prosector's spokesperson, accepts her side has sometimes given an impression of poor organisation with witnesses seeming to appear in no special order. This is largely because of their tight schedules, so that experts and politicians get jumbled between Albanian victims, she says.

Another reason for slow progress is that this is the first case covering Kosovo. As there is no defence team the two sides cannot produce an agreed statement of facts. Evidence has to be led just to show that killings and an exodus of refugees took place, even though the historical record leaves that in no doubt.

Ms Hartmann complains of time pressure. Judge May and his two colleagues, Judge Patrick Robinson from Jamaica and Judge O-Gon Kwon from South Korea, have ruled that the prosecution's evidence on Kosovo must finish by the end of July. The prosecutor will then have until April 2003 to bring evidence against Mr Milosevic for Bosnia and Croatia. Mr Milosevic will have an equivalent fourteen months to mount his defence.

Mirko Klarin, the correspondent for the online Institute for War and Peace Reporting ( www.iwpr.net), has watched every day of the trial. He argues that the combined weight of evidence from the 40 Albanians who have described how they were forced out of Kosovo, usually after their villages were shelled and looted, has been impressive.

"It has shown that the attacks against civilians organised by Serb and Yugoslav security forces under Milosevic's command were systematic, widespread, and constituted a pattern", he says.

The prosecution is trying to prove Mr Milosevic ordered this. In Belgrade the media has made much of the prosecution's failure to get a significant Serb "insider" to testify they knew of such orders. So far only one relatively low-ranking official has appeared in court.

Mr Klarin points out that the original indictment on Kosovo was issued when Mr Milosevic was still in power and no one could have imagined any witnesses would appear from inside his camp. This shows, he said, there was a prima facie case for indicting him even without insider testimony. In order to get a conviction the prosecutor only needs to show Mr Milosevic was aware of atrocities and failed to use his command authority to stop them or punish those responsible. Kosovo was part of Yugoslavia and Mr Milosevic was president.