FEUILLETON 25 Years of NATO Bombing of Serbia (36): Indictment by The Hague Tribunal

Written for Kosovo Online by Dragan Bisenic

Strobe Talbot recounts feeling increased pressure from all sides in May, and together with Chernomyrdin and Ahtisaari, they felt it was "time for a turnaround." Yeltsin increasingly struggled to justify Russia's role in the diplomatic game as the bombings continued. Ahtisaari felt the pressure from Europeans, especially Schröder, to come up with a solution soon. Talbot faced growing skepticism within the administration about whether the Russians were playing a double game with Milosevic.

Madeleine Albright, a tireless enthusiast of the bombing, admitted that she too was at the limits of her strength and patience, as were both sides, so it was just a matter of who would give in first.

 "As the deadlock continued, I felt we were in a race where both runners were fatigued; the question was whose legs would buckle first. Certainly, there is a limit to the damage the Yugoslav government could endure without giving in, but it was unclear whether that limit would be reached before the center of gravity within NATO shifted towards compromise. The winning side would inevitably be the one that showed the most will," Albright assessed.

On Monday, May 17, Russian Foreign Minister Igor Ivanov said after a meeting with his EU counterparts that Russia was "ready to work on adopting a UN Security Council resolution on Kosovo," provided that the bombing of the FRY ceased first. The Canadian government rejected proposals by NATO leaders calling for a ground war against Yugoslav forces in Kosovo.

Former US Attorney General Ramsey Clark, who visited Serbia, assessed in Nis that the "brutal attack on that city... (was part of) America's and NATO's unrestrained criminal aggression." The city assembly in Pristina announced that it had banned the serving of alcohol in public places within its territory.

On Thursday, May 20, Russian Foreign Minister Igor Ivanov stated that "the first draft of a UN Security Council resolution on Kosovo already exists on paper," although there were "still a number of unresolved issues."

Russia "once again decisively condemned the criminal actions of NATO aviation" in the FRY, according to a statement from the Russian Foreign Ministry. The statement highlighted that last night's most intense attack on Belgrade directly hit with two missiles, destroying one building of the Clinical Hospital Center "Dr. Dragisa Misovic," and damaging the residence of the Swedish ambassador.

It is unlikely that the 19 NATO members could reach a consensus on an invasion and the use of a ground army of more than 100,000 people, said a senior alliance official.

On Friday, May 21, NATO indicated that it was increasingly working on planning a ground invasion. NATO must be open to other options besides air strikes, as at this stage, no one can guarantee that the air operation would produce the desired effects by fall, the Pentagon announced. Albright stated that the discussion about the need for a ground invasion began with "renewed energy." There were obvious risks, but it was sobering to attend meetings in May where "winter refugee camps" topped the agenda.

NATO had never had to conduct a ground campaign, but we decided to double the number of troops in Macedonia and Albania. These troops were supposedly being prepared to serve in a peacekeeping mission in Kosovo, which would be deployed only after the war. However, as we wanted Milosevic to understand, the troops could also form the core of a ground combat force if necessary.

For Yugoslavia, a UN mission in Kosovo was acceptable, with its scope, mandate, and modalities to be agreed upon in direct dialogue between the representatives of the FRY and the UN, stated the spokesman of the Federal Ministry of Foreign Affairs, Nebojsa Vujovic.

President of the FRY Slobodan Milosevic, in a conversation with a delegation of the Greek parliament, said that "besides the severe crimes that continuously cause suffering to people and destruction of the FRY, there is also one great crime about which little is spoken, and which was also committed by NATO," reported Belgrade media. "It concerns the baseless accusation of our state for the exodus of Albanians from Kosovo," said Milosevic.

The three mediators agreed that it was time for Ahtisaari and Chernomyrdin to go together to Milosevic: this long-awaited trip to Belgrade was planned for the last week of May. They also agreed that the mission would likely be more successful if the two of them brought along a single document containing the necessary steps to stop the bombing. This would eliminate any differences in opinion between "Mr. Hammer" (Chernomyrdin) and "Mr. Anvil" (Ahtisaari), and Milosevic's room for evasion would be significantly reduced. The meeting, hoped to be the climax of all meetings, was scheduled for Wednesday, May 26, at Stalin's dacha. The main task was to write a joint text.

Talbot arrived in Moscow the day before the meeting. He was then called by Berger and informed that the International Criminal Tribunal for the former Yugoslavia in The Hague was about to issue an indictment against Milosevic for his role as the "brain" behind Serbian crimes against civilians in Kosovo. Almost simultaneously, Ahtisaari, who was preparing to travel from Helsinki to Moscow, was called by Kofi Annan and informed of the same news.

"The indictment was not raised just to justify the court's expense, but was imperative for the Tribunal if that body wanted to have any credibility. From the standpoint of our trilateral diplomacy, however, the timing of raising the indictment was, to put it mildly, not exactly ideal. When Ahtisaari and I arrived at Stalin's dacha the next morning, Chernomyrdin theatrically told us to again set an empty chair at the table, because, thanks to the Tribunal, negotiations with Milosevic would be harder," said Talbot.

The Tribunal for War Crimes published the indictment against Milosevic, Milutinovic, and three other Serbian leaders for crimes against humanity on May 27. Albright described that there were "those who were nervous about Milosevic's indictment, considering that it meant we could not negotiate with him," specifying that she was not in that group. "I was satisfied with the indictments, because its message was the same one that NATO had been sending for two months: those who commit ethnic cleansing will ultimately not get what they seek and lose what they have. The immediate question was whether the indictments would make Milosevic more or less likely to accept NATO's terms," she specified.

However, Chernomyrdin agreed to travel to Belgrade alone one more time, the fourth time, to lay the groundwork for a joint visit with Ahtisaari, planned for the following week. These missions were not just diplomatically strenuous and politically risky for Chernomyrdin; they were equally dangerous to his life. Serbian air defenses were "on a short fuse," and no one knew what Milosevic might do if he felt that Russia was about to adopt NATO's demands.

The day after the Tribunal's action, Chernomyrdin and Milosevic, at a ten-hour meeting in Belgrade, gave a tempting joint statement declaring that the UN Security Council should pass a resolution on Kosovo "in accordance with the UN Charter." "What did that mean? I called Ivanov, who refused to explain what, if anything, had changed. Instead, he said that Russia was asking Chancellor Schröder, as head of the EU, to invite Chernomyrdin, Ahtisaari, and a US representative to Bonn for a decisive meeting. We sent Strobe Talbot," Albright narrates.

During the meeting, Chernomyrdin only mentioned Yeltsin's name once, when he stood up to receive a call from Prime Minister Stepashin, who was with Yeltsin in the presidential limousine at that time. According to Stepashin, Yeltsin was extremely angry about the news from The Hague and convinced that it was an attempt to sabotage Russian peace efforts and prevent his diplomatic triumph, which would have been applauded at the summit in Cologne. When Talbot heard that Chernomyrdin had only spoken with Stepashin, he took it as a bad sign—the mood Yeltsin was currently in and Chernomyrdin's inability to access the Russian president.

Unlike Chernomyrdin, who only spoke with the Kremlin once, the Russian intermediary reports that Talbot was constantly consulting Albright. So frequently, that Chernomyrdin asked why he so often called his "chief-mother" and requested that the White House send someone who has authority and who does not need to call her every 10 minutes.

When they were alone, Talbot said that Albright would hear what he had said about her and would be offended. "Tough people, these Americans," Chernomyrdin concluded.

On Sunday, May 30, the Kremlin sent a message to the White House that Yeltsin wanted to speak with Clinton the next day, on Memorial Day. When the phone rang, the Kremlin operator said that Yeltsin was "unavailable" and instead, Prime Minister Stepashin spoke. The Prime Minister was all business. He suggested to Clinton that he send someone "responsible"—he repeated this several times, each time emphasizing the words—who could "iron out" the document containing NATO's terms, which Ahtisaari and Chernomyrdin were carrying to Belgrade, so the mission would succeed. There was no doubt that Stepashin wanted to raise the rank of the American representative to either vice-presidential level, or, if not possible, to the level of Secretary of State.

Listening to the conversation on another phone placed at the opposite end of the Oval Office, I began to send urgent signals to the president, waving my hand. He gestured to me not to worry. Stepashin was told that I was returning to Moscow with full authority. After he hung up, Clinton was more amused than I was about how close I had come to being dismissed from the most important task of my career.

"I suppose you've earned a reputation among those people as a real hardhead," he said. "They don't say that about you here!"

Then he became serious: "You know, if I had to guess, I bet they think they've accomplished something in Belgrade and are now preparing for the endgame."

The initial indictment of the International Criminal Tribunal for the former Yugoslavia, 54 pages long and focusing on war crimes in the Kosovo region, was written by Nancy Paterson and Clint Williamson. Nancy Peterson died in 2010 at the age of 56, and Williamson became the first American ambassador for crimes. This was the first time a current head of state had been indicted by an international court. The indictment was later expanded to include crimes in Croatia and Bosnia. Later, former Chief of General Staff, General Dragoljub Ojdanic, was also indicted and convicted before the Court for war crimes in the former Yugoslavia, saying that he later tried to lift "the burden of his responsibility" in an interview with "The Observer," where he complained that Louise Arbour had ordered him to write the act, and Peterson claimed that she had then strongly opposed the Kosovo indictment, but had not resisted.

The reporter from the trial at The Hague Tribunal for the former Yugoslavia, Nenad Lj. Stefanovic mentioned some circumstances of this lawyer's participation in the work of the Tribunal. Stefanovic noted that Nancy Peterson, who had once been employed in the Tribunal's prosecution office and participated in the rapid indictment of Milosevic during the bombing, claimed that, in her opinion, the prosecution in the upcoming trial did not have to prove that Milosevic ordered the killings, but it had to prove that he did nothing to prevent the crimes or punish the perpetrators. This American lawyer believed, however, that such proof would require the testimony of at least a few of Milosevic's former close associates. And that practically means that at least someone else from the group "gather five and send to The Hague" (Milan Milutinovic, Nikola Šainovic, Vlajko Stojiljkovic, Dragoljub Ojdanic) would very soon have to travel to the Netherlands, provided that he was willing to testify directly against Milosevic. Such a "volunteer" could make a deal with the prosecutor and significantly reduce his own potential sentence. Without such a "volunteer," for whom Carla del Ponte most likely stopped by Belgrade at the beginning of this week, it would not be easy for the prosecution to do the job it started two and a half years ago," wrote Stefanovic.

Peterson was not a big legal name. She was the 11th local prosecutor in the Manhattan District Attorney's office, specialized in child abuse and sexual crime cases, who volunteered to go to Yugoslavia in 1994 as a member of a United Nations commission investigating widespread sexual violence there.

Nancy Peterson was the one who worked on all the indictments, dozens, for rapes. "She worked for years with a small team, all women, raising dozens of rape charges. She was very involved in gathering evidence, which was very difficult due to the unwillingness of victims to tell their story," said the chief prosecutor of the tribunal, Louise Arbour.

Nensu Peterson spoke more about her work in an interview with "The Guardian"

"Milosevic," says Paterson, "was always in the background of everyone's work. But in Bosnia, there wasn't that direct chain of command. Although we now know much more about Bosnia, in Kosovo it was Milosevic's project from the start," said Peterson.

Chief Prosecutor of the Tribunal Louise Arbour called a meeting of the Kosovo team in March and announced that it was time to quickly indict the leader of Serbia. "We knew we were working under strict time constraints. We decided to set a random, self-imposed deadline," says Paterson, "and we had to raise the indictment. From that meeting to the publication of the indictment, 52 days passed."

Very specific "crime scenes" were selected, where testimonies were corroborated and met the criteria of being "widespread and systematic" (necessary for establishing crimes against humanity): the village of Izbica, Mala Krusa, which were reported at NATO press briefings.

Paterson also worked "from the top down," on establishing Milosevic's responsibility in the command chain. "We worked from the bottom up and from the top down, towards the middle," she recalls, "and the middle is where the legal challenge is."

Connections in these middle layers were established by intertwining two principles: Milosevic's de iure and de facto authority at the top of the apparatus. "De iure" relies on the chain built into the constitution – "that Milosevic, as President of Yugoslavia, was constitutionally responsible for the police and the military." De facto "we compare with the case of the mafia, where technically there is no formal chain, but it does what it does and orders are given. But how can you prove that?'.

In the meantime: "there was great pressure from both sides. Some thought it was a bad idea to raise the indictment while the war was ongoing, that it would somehow prolong the war and complicate things for the NATO alliance'.

Finally, the moment came: "It was a tough decision, but we decided that this would neither prolong nor shorten the war; we had a case, we had material evidence, satellite photographs, and witnesses'.

The scope and quality of intelligence data made available to the Tribunal significantly improved from the early days – especially those provided by the United Kingdom after the change of government in 1997. "One of the biggest challenges we face and will always face is how to deal with sensitive information. We convinced governments that we could protect sensitive information. But sometimes there were intelligence data that were too sensitive and we had to come at them some other way'. Another important source were intercepted telephone conversations of Yugoslav forces and officials provided by the United Kingdom to The Hague.

After the indictment was confirmed by Judge David Hunt, there was a meeting in the prosecutor Arbour's office, where in the end, the two women were left alone. Arbour, seeking some assurance, turned to the author of the indictment: "This is a good thing, right?" she asked. 'Yes judge', Paterson replied, 'this is a very good thing'.

The already published arrest warrant for Slobodan Milosevic was amended on Friday evening and 5 new "killing sites" were added: Vučitrn, Meja, Dubrave prison, Suva Reka, and Kačanik.

The final meeting began on June 1 at Petersberg, in the guest house of the German government – located in a mountainous area near Bonn, overlooking the Rhine. The meeting place was chosen at the request of Chancellor Schröder, to be close; he hoped, as did the participants, that this would be the key session.

From the very beginning of the first day of talks, which lasted well into the night, it seemed that the Germans were hosting a complete fiasco. In addition to refusing to unconditionally adopt a complete withdrawal of Serbian forces, the Russians defined their demands for a geographical division of labor and command structure of the forces in Kosovo in such a way that the whole story was even less feasible: all operations must be under "political" control of the United Nations and a special sector must be formed for the Russian contingent that would not be under NATO command.

Talbot presents that the American position was the same as several years earlier around Bosnia, when Defense Secretary William Perry "forced the Russians" to accept it: one, unified NATO command for the entire operation, with Russian peacekeepers under the jurisdiction of an American officer – thus, it is about indirect NATO command. This agreement we called "Dayton rules" or "Bosnia model".

Talbot reported to Albright that after several meetings the Russian position was still unsatisfactory. They had not yet accepted the need for all Yugoslav security forces to withdraw, and they wanted Russian peacekeeping forces to have their own sector within post-war Kosovo. Berger and Albright told Talbot to hold the line on the first point. Then, Albright notes that Moscow "gave in overnight".

Albright exclaimed: "Finally, NATO and Russia had a common stance. The resulting document, which outlines the conditions that Milosevic had to meet to stop the bombing, was forwarded to Belgrade. That was the magnet we wanted and which Milosevic feared. Convinced by Chernomyrdin and Ahtisaari that he would not get a better offer and that the Russians would no longer support him, the Serbian leader accepted the deal and asked his parliament to approve it. Around dawn on June 3, phones began ringing across Washington and at different times of day in the capitals of NATO from Ottawa to Athens. The fighters had reached their target