MEMORANDUM
To: Joe Dio Guardi
From: Matthew Mark Horn
Date: June 17, 1998
Re: Evidence for establishing a prima facie case against FRY President Slobodan Milosevic, et.al.
Via Facsimile: 914-762-5102: 17 pages
Background:
The information (evidence) contained in the indictment must satisfy the requirements of the Statute of the International Tribunal ("Statute" or "the Statute") of the International Criminal Tribunal for the Former Yugoslavia ("ICTFY" or Tribunal), and the Rules of Procedure and Evidence of the Tribunal ("the Rules"), (in relevant part, annexed hereto).
Of paramount importance in preparing a case for indictment against Milosevic, et.al. are Articles 3,4, 5, 7 of the Statute. Article 3 is for "violations of the laws or customs of war," Article 4 deals with "Genocide" Article 5 deals with "crimes against humanity," and Article 7 deals with "individual criminal responsibility." Article 2 deals with "grave breaches of the Geneva Conventions of 1949, and in all likelihood, inapplicable in a case against Milosevic, as Kosova is part of Serbia, and the requirements of 'protected persons' is not satisfied (see Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in the Time of War") - According, to the cases, Conventions and materials reviewed to date, protected persons have to be "in the hands of a Party or Occupying Power of which they are not nationals.". Although, an argument may be proffered that, Kosova, while legally part of Serbia, is a State, as defined in Rule 2, which states, "A State Member or non-Member of the United Nation
s or a self-proclaimed entity defacto exercising governmental functions, whether recognized as a State or not." However, Article 3 of the Statute is constructed and applied by the Tribunal for internal conflicts, i.e. civil conflicts.
The above are not set forth in the indictment, only the allegations. In preparing its case the prosecutor will set forth the counts in the indictment and will argue (in legal memoranda and during the trial phase) how each indictment satisfies each element of the Statue. The prosecutor's burden of proof is the 'beyond a reasonable doubt' standard, consistent with our burden of proof in criminal trials. The case as the ICTFY is for criminal liability only, and not an action for money or damages or the like, which is a civil matter.
The initial issue must be ascertained is whether the ICTFY is competent to hear cases from Kosova, or if a separate Tribunal will be established.
Evidence:
The evidence collected during the investigation phase of the case is the type of evidence that one would see in any criminal case. Think of the case against Milosevic, as a criminal trial, under international rules and procedures (in many instances not unlike the rules and procedure in our own courts), rather than specific state or federal statutes.
Pursuant to Rule 39, the prosecutor, conducts the investigation(s) of the allegations. (see, Rules that follow). In this case, we are seeking evidence that substantiates the allegations in order to indict an individual. The only caveat is that the evidence must not be tainted. This was one of the issues that I discussed with the Mr. Ralston, the investigator at the ICTFY. If the evidence is tainted or any nexus to taint exists, no matter how remote, the defense will seek to have it excluded, which may be detrimental to the outcome of the case.
The information we need applies to the general allegations and the charges (see document attached hereto).
General Allegations: At all times relevant to this indictment, a state of armed conflict existed in the Kosova Province, in the Republic of Serbia, FRY, in the territory of the former Yugoslavia... (see, general allegations, attached hereto).
Charges: These are that actual charges (the alleged crimes the defendant is amused of), as set forth in the Statue.
For Article 3 (a-e); Article 4 (1), (2) (a-e), 3 (a-e), Article 5 (a-I), where applicable and relevant, we must have specific names, dates, places ( location, name of town, street), and if possible the name or unit of person perpetrating the alleged crimes.
For example, if the alleged activity is Article 5 (a) murder, then we need to list the location of the alleged murder(s), the number of people killed, how they died (shooting, snipers, shelling, fires, stabbed, etc.), the people perpetrating the crime(s) (unit, VJ, Police etc.), any and all information available. Remember each murder, rape, constitutes a specific count in the indictment, for example, there can be 33 counts of rape, murder and so forth.
Again for crimes as, Article 3 (b) "wanton destruction of cities, towns or devastation not justified by military necessity," the name of the city, village, house, apartment, building, will suffice. Include the street, how the building was destroyed (fire, shelling etc,).
It is imperative to get as much information as possible from each and every witness, their address, if a refugee what camp are they in and how the ICTFY or we could get in touch with them to provide additional information and to answer any question that investigators may have in the investigation leading to an indictment. Also include the witness relationship(s) to the victim(s), and those that are missing, or taken away and have not returned.
If possible the interviews should be videotaped and be accompanied by signed affidavits. One thought may be to compile the initial evidence and turn it over to Ralston at the ICTFY or to discuss with the ICTFY that the League offers to assist in the Kosova investigation and send our own teams over to Kosova and Albania to the refugee camps and interview the people who survived and witnessed these atrocities.
According to the information in the Bulletin of the Tribunal, any State, presumably as defined in Rule 2 may present information for an investigation of alleged crimes.
Supporting documentation follows this memorandum.
FILE No.________________________________
Date ____________________________________
INCIDENT REPORT
Family name _______________________________
First name _________________________________
D/O/B ____________________________________
Identification No/or other form of
Identification _______________________________
Place of birth ___________________________________
Occupation ____________________________________
Employer ______________________________________
name(s) of
children ________________________________________
_______________________________________________
Address ________________________________________
include street town, village and all other descriptive information
_______________________________________________
Describe any event(s) that you witnessed. Please be specific as to the dates time, event, and if possible identify or describe the uniform or clothing or features of the VJ or Para-military police that perpetrated the act. It Is important that you are as specific as possible. If you do not remember the event(s) exactly, state only what you remember. For example, if your house was destroyed, state my house at ____ in the town of ____ at ______ street, was destroyed on May 5, 1998 by artillery shells at 1000 hours. Present at the shelling were my children (their names), and our home and property was completely destroyed (If neighbors or friends were present,
File No.______________________________
Page No._____________________________
Date: ________________________________
state their names, as it is important that we talk with them). If you were injured, during the trip from Kosova to Albania, please state everything that happened. Remember, there can never he enough detail
If you were robbed, please state what was stolen and if you know, by whom _______________________________________________
____________________________________________________
If a family member was killed in Kosova, where were they buried (include date, and any other information)
_____________________________________________________
_____________________________________________________
Were you treated at a hospital or receive any type of medical care? (where did you receive the care and what is the name of the person who treated you? What injuries did you sustain?
_____________________________________________________
_____________________________________________________
Do you have any relatives in the U.S. that you would want our organization to notify? ______________________________________________
______________________________________________________
________________________( please list address and phone number)
________________
Signature of Declarant
_______________
signature of Witness photo
_______________
date and location
( Draft for outline purpose only )
The Albanian American Civic League submits the following indictment against Slobodan Milosevic, to the Prosecutor of the International Criminal Court for the former Yugoslavia ("ICTFV"), and respectfully requests that the Prosecutor, pursuant to his authority under Article 18 of the Statute of the International Criminal Tribunal for the former Yugoslavia ("the Statute of the Court") charge:
THE ACCUSED
1. SLOBODAN MILOSEVIC, born on in the municipality of ______the Republic of _____. From on or about the early part of 1990 to the present,
he has been the President of the Republic of Serbia until he assumed the presidency of the Federal Republic of Yugoslavia (consisting of the former
Yugoslavia Republics of Montenegro and Serbia, and the former autonomous province of Kosova).
2. MILITARY and PARAMILITARY POLICE OFFICIALS and other AGENTS of the STATE RESPONSIBLE FOR PERPETUATING CRIMES.
SUPERIOR AUTHORITY
SLOBODAN MILOSEVIC
3. SLOBODAN MILOSEVIC a member of the Socialist Party of Serbia ("SPS") and was elected its leader in 1987, the main, most powerful and largest political party in Serbia. As president of the SPS he was and is the most powerful official in the party. His duties include representing the party in all aspects of its political life, coordinating and carrying-out the work of the party, its official organs, and ensuring that the goals and programs of the party are satisfied.
4. SLOBODAN MILOSEVIC was elected of the Republic of Serbia in 1990, the most powerful official in the Republic of Serbia. At the time he assumed the presidency, his de jure powers, forth in the constitution of the Republic of Serbia, included, but were not limited to, commanding the armed forces in peacetime and war, and the popular resistance in war, order the general or partial mobilization, organize the preparations for defense, and promulgate directives for war at his own initiative or with the approval of a government, during a war or a immediate danger of war, pass enactments that fall within the fall within the purview of the National Assembly...
5. SLOBODAN MILOSEVIC was elected president of the Federal Republic of Serbia (Montenegro and Serbia) on _____, the most powerful official in Serbia and Montenegro. At the time he assumed his position, his de jure powers, as described in the Constitution of the Federal Republic of Yugoslavia, included, but are not limited to, commanding the army of the Federal Republic in war and in peacetime, and the power to appoint, dismiss and promote officers of the army.
6. In addition to his power set forth in the Federal constitution, SLOBODAN MILOSEVIC'S powers as president of the Federal Republic, pursuant to laws and directives are augmented by _____ , winch vest with him, among other powers, the authority to supervise the territorial defense in both war and peacetime and the authority to issue orders for the utilization and deployment of police/ paramilitary police units in the case of war, threat of war or for the maintenance of law and order.
7. SLOBODAN MILOSEVIC has exercised the powers set forth above and has been dealt with international as the president of the Federal Republic of Yugoslavia in Belgrado. In that capacity, he has, inter alia, participated in international negotiations and has made agreements on matters germane to the situation.
GENERAL ALLEGATIONS
8. At all times relevant to this indictment, a state of internal armed conflict existed in the former autonomous Province of Kosova in the territory of the former Yugoslavia.
9. All acts or omissions herein, set forth as violations of the laws or customs of war (hereafter "violations") recognize by Article 3 of the Statute of the Tribunal occurred during the aforementioned internal armed conflict.
10. In each paragraph charging genocide, crimes recognized by Article 4 of the Statute of the Tribunal, the alleged acts or omissions were part of a systematic or large-scale or widespread attack directed against a civilian population.
11. The accused in this indictment were and are required to abide by the laws and customs governing the conduct of war, including all relevant Conventions and Protocols.
CHARGES
12. The charges set forth in this indictment are in three parts:
Part I of the indictment, Counts?-? , charges violations of the laws or customs of war, that were perpetrated against the civilian population and against places of worship throughout the territory of the former autonomous Province of Kosova.
Part II of the indictment, Counts?-? , charges a crime of genocide that were perpetrated against a civilian population throughout the territory of the former autonomous Province of Kosova.
Part III of the indictment, Counts?-?, charges crimes against humanity, that were perpetrated against the civilian population throughout the territory of the former autonomous Province of Yugoslavia.
PART I
COUNTS I-?
(VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR)
13. SLOBODAN MILOSEVIC, et al, from March 1998, in the territory of the former autonomous Province of the Republic of Serbia, by their acts and omissions committed violations of the laws or customs of war.
14. Kosovar Albanian of Kosova were subjected to weapons calculated to cause unnecessary suffering throughout the former autonomous Province of Kosova (hereafter "Kosova")...
15. The civilian Albanians of Kosova were subjected to wonton destruction of cities, towns or villages or devastation not justified by military necessity....
16. The civilian Albanians of Kosova were subjected to attack, bombardment, by whatever means, of undefended towns, villages, dwellings or buildings....
17. The civilian Albanians of Kosova were subjected to the seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and science, historic monuments and works or art and science....
18. The civilian Albanians of Kosova were subjected to plunder of public or private property....
NB: Joe: (IN ALL OF THE ABOVE NUMBERED PARAGRAPHS, SPECIFIC INSTANCES MUST BE SUPPORTED BY EVIDENCE, AND MUST BE SET FORTH WITH SPECIFICITY AS TO THE SPECIFIC ALLEGATION (BY VILLAGE, TOWN, MUNICIPALITY ADDRESSES, STREETS, LOCATIONS AND TYPE OF BUILDING), WE WOULD LIKE TO SET FORTH A COUNT FOR EACH ACT,
PART II
GENOCIDE
19. SLOBODAN MILOSEVIC, et al, from March 1998, in the territory of Kosova in the Republic of Serbia, by their acts and omissions, committed genocide (including conspiracy to commit genocide and lesser included offenses).
20. Kosovar Albanian civilians were systematically persecuted on national, political, ethnic and religious grounds throughout Kosova, where the Kosovar Albanians comprise more than 90% of the population. The civilian Albanians of Kosova were subjected to widespread acts of physical and psychological abuse, designed to bring about the destruction of the aforementioned people. In excess of 240,000 people were forced to flee their homes as a result of the widespread and systematic Serbian campaign designed to rid the region of the Kosovar Albanians through death, serious and debilitating injury deliberately inflected upon the civilian population, intended to bring about their destruction.
PART III
CRIMES AGAINST HUMANITY
21. SLOBODAN MILOSEVIC, et al, from March 1998, in Kosova, in the territory of the Republic of Serbia FRY, by their acts and omissions, and in concert with others committed a crime against humanity by persecuting ethic civilian Kosovar Albanians on national, ethnic, political and religious grounds. As enumerated below, they are criminally responsible for the murder, rape, sexual assault, torture, beating, robbery and inhumane treatment of civilians (forcing more than 240,000 people to flee, brought on by the sheer brutality of the Serbian barbarity, is tantamount to deportation and transfer); the unlawful shelling of civilians; the unlawful appropriation and plunder of real and personal property; the destruction of homes, businesses and crops; and the destruction of places of worship.
MURDER
22. Civilian Kosovar Albanians were murdered by Serbian forces....
RAPE
23. Civilian Kosovar Albanians were raped by Serbian forces....
SEXUAL ASSAULT
24. Civilian Kosovar Albanians were sexually assaulted by Serbian forces....
TORTURE
25.
BEATING
26.
ROBBERY
27.
INHUMANE TREATMENT OF CIVILIANS
28.
TARGETING OF POLITICAL LEADERS, INTELLECTUALS AND PROFESSIONALS
29.
UNLAWFUL DEPORTATION OF CIVILIANS
30.
UNLAWFUL SHELLING OF CIVILIANS
31.
UNLAWFUL APPROPRIATION AND PLUNDER OF REAL AND PERSONAL PROPERTY
32.
DESTRUCTION OF HOMES, BUSINESSES AND CROPS
33.
DESTRUCTION OF PLACES OF WORSHIP
34.
