Prosecutors fail to deliver 'smoking gun'

By Jon Silverman
Legal affairs analyst

By charging Slobodan Milosevic with genocide, the prosecutors at his trial set the bar as high as they could in international law.

Milosevic has now three months to prepare his case

Under the 1948 UN Genocide Convention, there are two constituent elements to establish.

One, the physical killing of members of a racial, national or ethnic group.

The second, an intention to destroy, in whole or in part, such a group.

Now that the prosecution has completed its case after 295 court days, the judges in The Hague will have to determine firstly whether Yugoslav and Bosnian Serb forces set out to destroy Muslims and Croats "as such" - or whether the deaths were an unpremeditated result of their aim to establish Serb control over territory they coveted.

The prosecution has not delivered the spectacular knockout punch which it trailed before the trial began by promising insider evidence of Milosevic's culpability

And then, of course, there is the question of how far Mr Milosevic has been shown to have exercised de facto authority over the Bosnian Serbs from his base in Belgrade.

Legal sources in The Hague suggest that the prosecution would be feeling more optimistic about its chances if it had been given longer to make its case.

Chief prosecutor Carla del Ponte and her team are also said to be displeased and nervous about a "no case to answer" plea on the genocide charge which it seems the judges will hear.

Baggage

There are few observers who have written or commented on the Milosevic trial without trailing some baggage behind them.

Prosecutors have tried to prove a Srebrenica link

The international lawyer, Geoffrey Robertson QC, believes the trial has been scrupulously fair to the defendant.

But then, Mr Robertson is president of the Special Court for Sierra Leone and a fervent advocate of UN-established war crimes tribunals.

Balkan affairs specialist Neil Clark has described the prosecution case as "flagging".

But he has long argued that the tribunal is a blatantly political body, a creature of Nato.

What is uncontentious is the assessment that the prosecution has not delivered the spectacular knockout punch which it promised before the trial began by promising insider evidence of Mr Milosevic's culpability.

Powerful detail

No former aide of Mr Milosevic has provided a "smoking gun", not even Rade Markovic, the former head of the Serbian security service, on whom many prosecution hopes rested.

On the other hand, there has been a powerful accumulation of detail, both in relation to Kosovo and events in Croatia and Bosnia, which have linked Mr Milosevic to crimes against humanity.

It is also fascinating to note that Milosevic has not played what many thought would be his "nuclear option", refusing, in practice, to acknowledge the authority of the court.

This is probably because when it came to it, he could not resist the opportunity to show that he was a better advocate than his opponents.