[ALBSA-Info] Milosevic's money trail

[Agron Alibali]

The Times (London) 


February 13, 2001, Tuesday 

The Milosevic money trail 

John Reynolds 


John Reynolds on the task of tracing a dictator's
assets 

THE lot of a City litigator can involve many
innovative causes of action but litigating a claim
based on genocide is one of the more unusual. Last
year a group of Kosovan Albanians now in the US
brought an action against the former Yugoslav
President Slobodan Milosevic and other key figures.
The claim, filed in the US Federal Court in the
District of Massachusetts, alleges that senior
Yugoslav officials engaged in crimes of genocide, war
crimes and other violations of international
humanitarian law in Kosovo through an organised
conspiracy to achieve an ethnically pure Serbia. 

The service of the proceedings on Milosevic was
unusual. At first attempt, the papers were returned
marked "Not known at this address". The truth was
"This address not known" - the dictator's former home
- was now a crater, having been destroyed in a cruise
missile attack. An additional factor is that Milosevic
remains in Serbia and retains a certain position.
Indeed, in November he was re-elected leader of the
Serbian Socialist Party. 

It is typical for litigation against a head of state
to take place once the individual concerned is out of
power. There are a number of reasons for this. First,
it is only once the individual has left office that
there is likely to be the political will or individual
motivation to bring an action. Secondly, after a
change of regime, former supporters are more inclined
to share information and evidence. And finally, if the
individual has left his home country as well as
office, he will need access to money, making assets
easier to identify and freeze. Milosevic was President
when the clients brought their action; in October he
was ousted. 

Meanwhile, Augusto Pinochet faces the prospect of
criminal and civil action in Chile - previously
regarded as a safe haven. The security that each of
these former leaders derives from his home country is
significant. In the case of Pinochet, there is still
strong popular support, which may yet influence the
criminal investigation. 

For Milosevic, the future is uncertain. While he may
be leader of the party, that may not be enough to
ensure protection either in the short or the long term
(particularly in light of December's election
results). He is subject to an international arrest
warrant and the political pressure from outside the
country to hand him over to the UN authorities is
stronger now that he is no longer head of state. 

While it may go against the norm to be bringing
proceedings against a former head of state who retains
certain power in his home country, the circumstances
of Milosevic do not add undue complexity to this case
in the way that Pinochet's presence and status in
Chile may affect investigations there. The current
proceedings are not in Milosevic's home country and,
once judgment is obtained, it is unlikely that
enforcement would be sought there. Likewise, assets
likely to be of interest to the claimants are not in
Yugoslavia. 

Despite the unusual aspects of this case, the
post-judgment legal arguments and weaponry which may
be deployed are little different from those in many
commercial asset-tracing exercises; in fact, the
notoriety of the defendant may make some aspects
easier. The major task is usually identifying assets.
The investigation techniques will be the same as those
in any commercial case; in this case the task is made
easier because the identity and whereabouts of many of
Milosevic's assets are known to Western authorities. 

Also, while in many commercial asset-tracing cases the
authorities in the offshore jurisdictions take a
neutral stance, this position may change if the assets
are shown to be those of an indicted war criminal. In
any case, the tracing and enforcement procedures and
case law in most of the offshore jurisdictions are
well developed and possible counter-arguments can be
addressed. 

The author is head of litigation at McDermott, Will &
Emery. 


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