C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 002611

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN,
EUR/SCE - STEPHEN/GREGORIAN, L/EUR - LAHNE, INR/WCAD -
SEIDENSTRICKER/MORIN

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: BK HR NL PHUM PREL SR ICTY
SUBJECT: ICTY: MILOSEVIC TRIAL CHAMBER BALANCES KEY
WITNESSES, HEALTH ISSUES AND EFFICIENT TRIAL MANAGEMENT

REF: A. THE HAGUE 2568

B. SECSTATE 287657

Classified By: Acting Legal Counselor David Kaye per reasons 1.5 (b)-(d
).


1. (SBU) Summary: Trial Chamber III of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) had its
hands full this week as it reconvened to hear the
Prosecution's case against Slobodan Milosevic. Compressed
into the new three-day per week schedule, the proceedings
balanced the testimony of key witnesses, including General
Rupert Smith, Commander of the UN Protection Force (UNPROFOR)
in Bosnia and Herzegovina (BiH) in 1995; continued management
of Milosevic's health and defense resources; and procedural
mechanisms designed to handle the Prosecution case
efficiently. End summary.

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Key testimony
--------------


2. (SBU) On October 9, the trial chamber heard the testimony
of General Rupert Smith, Commander of UNPROFOR in 1995 and
Deputy Allied Supreme Commander Europe from 1998-2002. His
testimony, among other things, placed Milosevic and Mladic at
the same meeting on July 15, 1995 in Belgrade. He also
testified that the shelling of the market place in Sarajevo
in August 1995, which killed and wounded many civilians, must
have come from Bosnian Serb positions and not from within the
enclave. Smith handled well the cross-examination on this
topic, in which Milosevic highlighted discrepancies between
an initial French-led investigation and a later, more
comprehensive one carried out by Smith's American-led team.
He placed soldiers in "black uniforms" in the assault on
Zepa, which occurred directly after the massacres in
Srebrenica. The soldiers in black uniforms, Smith testified,
were not part of the regular Bosnian Serb forces and wore
Serbian Army flashes on their sleeves. They remained in Zepa

until they left with Mladic to reinforce an area in West
Republica Srpska. He also exposed coded communications which
appeared to show that Milosevic was in contact with Mladic
through the summer of 1995. Smith testified to his belief
that Milosevic must have known of the ongoing Srebrenica
atrocities as of the meeting with Mladic on July 15.


3. (C) On the same day of Smith's testimony, one senior
prosecution attorney said that members of the Srebrenica team
(i.e., those building the case for Milosevic,s share of
responsibility for the July 1995 massacres around Srebrenica)
were "bouncing off the walls" because of lead prosecutor
Geoffrey Nice's failure to elicit Smith,s view that the fact
of the massacres -- if not the scope -- was clearly
foreseeable by anybody with knowledge of the situation in and
around the so-called UN safe haven. Smith told the
prosecution team on the eve of his testimony that he strongly
believed this to be true, but, for an unknown reason, Nice
failed to ask the relevant questions during the direct
examination. Comment: This is especially dispiriting to the
Srebrenica team, which is laboring strenuously to build the
genocide case against Milosevic. End comment.


4. (SBU) Earlier in the week, the Prosecution called one
insider witness who testified to Milosevic's contacts with
key Bosnian Serb leaders and a witness who explained a report
regarding statistical analysis of the change in demographics
in the Balkans region. Through extensive surveys and
analysis of voting records, the report showed how the
compositions of different regions of the Balkans radically
changed from mixed ethnic demographics to homogenous and
separate ethnic populations throughout the duration of the
war. The trends were consistent throughout the border
regions.

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The Health of the Accused
--------------


5. (C) Milosevic's health continues to be a pervasive
presence in the proceedings. One Prosecution team member
told Embassy legal officers that, during the morning break on
Tuesday, the first day back in trial after a two-week
suspension, a spot-check showed that Milosevic,s blood
pressure had spiked to 160/110. After doctors concluded that
Milosevic could nonetheless conclude the day's proceedings,
the trial continued in session and Milosevic completed his
cross-examination of the witness that day. The Accused, who
looked fatigued on Tuesday, looked much better on Wednesday
and Thursday in court.

6. (U) Bearing the health concerns in mind, the Trial
Chamber, on October 6, ordered that the role of the Amici
Curiae be extended to include receiving "communications as
the Accused may make to them and to act in any way to protect
and further the interests of his Defence." The Chamber
issued the order in light of "the recurring medical condition
of the Accused since 18 March 2002; and, the desirability of
the Amici Curiae giving greater assistance to the Accused."


7. (C) Meanwhile, as the trial chamber implemented its new
hearing schedule and the health issues remain a key concern
for all parties to the trial, members of the Prosecution team
are at a very preliminary phase of contemplating whether they
could rest their case even before using up their remaining 43
trial days. While they assert that all of their remaining
witnesses are critical, some prosecutors are concerned that
the trial could be indefinitely postponed due to the
accused's health, or even cut short by his death, leaving the
Prosecution unable to present key evidence. One problem, a
prosecutor said, was that a premature conclusion of the case
would preclude the amici, for example, from filing the
equivalent of a "summary judgment" motion under Rule 98 bis
of the Tribunal Rules of Procedure and Evidence. Prosecution
members believe that the trial chamber would respond to such
a motion by ruling that the Prosecution had presented
sufficient evidence "to sustain a conviction" (in the words
of Rule 98 bis) on many, if not all, of the counts against
Milosevic. But if Milosevic were to be incapacitated before
the Prosecution rests its case, no Rule 98 bis motion would
be presented to the chamber, and the trial could thus be left
in limbo without even a modicum of finality.

--------------
Trial Efficiency
--------------


8. (SBU) Prior to the testimony of General Smith, the Trial
Chamber heard arguments regarding the submission of Smith's
written statement -- as opposed to actual direct examination
-- as evidence-in-chief. Under last week,s Appeals Chambers
ruling (ref A), Rule 89(F) provides for the admission of
written statements when in the "interest of justice."
Milosevic argued vigorously, and fairly logically, against
the submission of written evidence in this case. He referred
to the "alleged evidence" in writing as "piles and piles" of
paper that the prosecution wants to slip in instead of having
oral testimony. The Accused argued that their was no
possible way that he could review the documents submitted by
the Prosecution. He stated that one could disclose to the
court "the existence of the Congress Library" but that would
not improve his ability to review every document that it
contains. He also argued that while oral testimony can be
heard by all in open session, the public has no access to
these written statements.


9. (SBU) Lead Prosecutor Nice argued that the primary means
of finding discrepancies in testimony occurs during the cross
examination, not during the direct. Furthermore, Nice argued
that because there is no jury, the professional judges of the
Chamber can easily deal with written statements as evidence
in lieu of oral testimony. Nice continued that it was in the
interest of justice that as much evidence and material be
presented to the court as possible. The Chamber ruled in
this instance that the written statement would be admitted as
evidence-in-chief; however, consistent with the Appeals
Chamber's decision, any material going to the proof of the
acts or conduct of the accused must be adduced orally in
direct examination.


10. (C) Finally, in a recognition of the dwindling number of
prosecution trial days, the Chamber also ordered the
Prosecution to submit to the court a finalized witness list
within 21 days. Relatedly, the Prosecution intended to file
on Friday, October 10, its motion for protective measures for
the testimony of General Clark (ref b). The Prosecution is
considering whether the testimony of other USG witnesses --
including Richard Holbrooke -- should be sought.


11. (C) Comment: The week of proceedings was, in many
respects, a continuation of recent themes. As it happened,
Milosevic showed the ability to persevere through the trial
after two weeks off for health reasons, a minor victory in
itself. Moreover, he demonstrated a certain engagement in
the proceedings -- for example, in his cross-examination of
General Smith and his arguments against the introduction of
Smith's statement in lieu of oral evidence. Still, the
background noise of the trial -- the health concerns and the
trial chamber's efforts to maintain a basic fairness to the
proceedings -- continues to engage the chambers as much as
the prosecution's case itself. Until Milosevic's health is
seen to be stabilizing, that pattern is likely to hold. End
comment.
SOBEL