ICTY: COURT REJECTS ONE THIRD OF ALLEGATIONS

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 001565

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
STEPHENS/MITCHELL, L/EUR - LAHNE, L/AF - GTAFT. INR/WCAD -
SEIDENSTRICKER/MORIN; USUN FOR ROSTOW/WILLSON

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: COURT REJECTS ONE THIRD OF ALLEGATIONS
AGAINST MILOSEVIC BUT FINDS SUFFICENT EVIDENCE TO CONTINUE
TRIAL ON ALL MAJOR COUNTS

REF: A. (A) WWW.UN.ORG/ICTY

B. (B) THE HAGUE 985

Classified By: Legal Counselor Clifton M. Johnson per 1.5(d).


1. (C) Summary: The case against Slobodan Milosevic before
the International Criminal Tribunal for the former Yugoslavia
(ICTY) crossed two key mileposts last week. On June 16, the
Trial Chamber issued its decision on the amici curiae,s
(friends of the court) motion seeking the dismissal of
numerous charges against the accused. While the Court found
that the prosecution failed to provide sufficient evidence
for roughly 130 of over 400 specific allegations against the
Accused, it refused to dismiss any of the sixty-six counts
against Milosevic. As a result, counts for genocide, crimes
against humanity and war crimes still stand. The decision,
moreover, found sufficient evidence of a joint criminal
enterprise in which Milosevic participated, an essential
finding for the prosecution given the dearth of evidence
directly linking Milosevic to specific criminal acts. A
defense status conference on June 17 marked the first
official appearance of Judge Bonomy (the replacement to Judge
May) and a solid first performance by Judge Robinson as
presiding judge. The conference showed the Trial Chamber
walking a careful line between efficient management of the
defense case and ensuring that it does not encroach upon the
Accused,s rights at trial. The Chamber rejected
Milosevic,s plea for additional time to prepare his case,
declined to consider whether to subpoena witnesses and
documents from the U.S. and other governments absent
additional steps and submissions by Milosevic, and confirmed
that the defense phase of the trial would commence on Monday,
July 5. End summary.

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Motion to Dismiss: A Victory for OTP
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2. (SBU) On March 3, the amici curiae filed a motion for
acquittal under Rule 98 bis of the Tribunal Rules of
Procedure and Evidence with respect to roughly 200 of the
more than 400 specific allegations against Milosevic. (NB: A
Rule 98 bis motion is similar in most respects to a summary
judgment motion in U.S. jurisdictions. According to the
rule, the trial chamber in response to such a motion may
issue a judgment of acquittal on some or all offenses "if it
finds that the evidence is insufficient to sustain a
conviction on that or those charges." A dismissal of a
challenge does not, however, mean that the trial chamber will
convict on a particular count; it merely confirms that the
prosecution has presented enough evidence to support
conviction on a particular allegation absent contrary
evidence introduced during the defense phase. A further act
of judging, of weighing whether the evidence meets the
"beyond a reasonable doubt" standard for a criminal
conviction, only comes following the defense case.) The
amici argued that an armed conflict did not exist in Kosovo
prior to March 24, 1999, requiring a dismissal of all
allegations related to the period before that date in Kosovo;
the charges related to the conflict in Croatia between
January 15 and May 22, 1992, should be dismissed because
there was no international armed conflict during that period;
the genocide charges related to Bosnia should be dismissed
for lack of evidence of the accused,s relevant actions or
specific intent to commit genocide; and roughly 200 separate
allegations related to specific crimes should be dismissed
for insufficient evidence to sustain a conviction.


3. (SBU) In a 144-page ruling (available at ref A),the Trial
Chamber refused to dismiss any of the sixty-six counts (which
are made up of roughly 400 underlying allegations) against
Milosevic. In particular, the chamber found sufficient
evidence of an armed conflict in Kosovo prior to March 24,
1999 and sufficient evidence of Croatian statehood by October
8, 1991, leading it to reject the amici,s arguments related
to grave breach charges in Croatia. The Trial Chamber did,
however, dismiss roughly 130 of the allegations related to
specific crimes that were associated with a number of the
indictment counts.


4. (C) Many observers were waiting to see whether the chamber
would uphold the genocide counts of the Bosnia indictment,
long seen as among the weakest elements of the prosecution,s
case. The chamber first found sufficient evidence to sustain
a conviction on genocide charges, saying that it "could be
satisfied beyond reasonable doubt that there existed a joint
criminal enterprise, which included members of the Bosnian
Serb leadership, whose aim and intention was to destroy a
part of the Bosnian Muslim population, and that genocide was
in fact committed" in a number of municipalities. More
importantly, it said that it "could be satisfied beyond
reasonable doubt that the Accused was a participant in the
joint criminal enterprise . . . and that he shared with its
participants the aim and intention to destroy a part of the
Bosnian Muslims as a group". In reaching this conclusion,
the chamber pointed to Milosevic,s leadership role among all
Serbs; his advocacy of "greater Serbia"; the support of
Serbia to the Bosnian Serbs; the accused,s relationship with
Bosnian Serb political and military leaders, and his
authority and influence over them; his "intimate knowledge"
of events in Bosnia; and the scope and nature of the crimes.


5. (C) Of the three indictments, the Kosovo case best
survived the ruling, with the Court dismissing all objections
lodged by the amici. By contrast, the court dismissed
roughly 125 (of 300) specific allegations covered by the
Bosnia indictment related to detention facilities, forcible
transfers and most of the Sarajevo sniping and shelling
incidents. Similarly, the court dismissed roughly 5 (of 55)
specific allegations related to the Croatia indictment. At
several points throughout the judgment, especially concerning
Bosnia, the trial chamber found that U.S. witnesses
(especially General Wesley Clark, but also former Ambassadors
Galbraith and Okun) and documents (not all of which have been
publicly identified as having been made available by the USG)
provided key support for the prosecution case.


6. (C) Despite the loss of roughly 130 of the specific
allegations of crimes, the decision on the whole seems to
bear out Senior Trial Attorney Dermot Groome,s assessment
that it represents a "huge victory" for OTP. Groome said
that OTP had conceded the lack of evidence for most of the
specific allegations dismissed by the chamber. The retention
of the genocide count in particular marks a significant
victory for OTP. That said, the judgment does not mean that
the prosecution case has been proven; rather, it demonstrates
that the prosecution was able to show that, in the absence of
contrary evidence presented by the defense, the evidence
could sustain a conviction. It remains for the trial
chamber, following the defense case, to weigh the evidence
and determine whether it actually meets the much higher
standard of proof beyond a reasonable doubt required in such
a criminal case.

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Status Conference: Gearing up for the Defense
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7. (C) The pretrial conference on June 17 was an important
milestone in the Milosevic case, both substantively and
procedurally. (NB: The "Omnibus Order on Matters Dealt with
at the Pre-Trial Conference" provides an overview of the
decisions reached at the conference and is available at ref
website). The conference was attended by Milosevic, two
amici, the new liaison between the chamber and the accused,
and other court officers, while a full press contingent was
in the gallery. Only lead prosecutor Geoffrey Nice and Chief
Prosecutor Carla Del Ponte were present at the prosecution,s
table. Conspicuously absent were senior trial attorneys
Dermot Groome and Hildegard Uertz-Retzlaff who had led the
Bosnia and Croatia portions of case respectively. (NB:
Embassy legal officers understand that Groome and
Uertz-Retzlaff will be called upon to help "if and when

SIPDIS
necessary." Del Ponte, in turn, has indicated that she will
actively participate in the defense phase, saying to her
staff, "I want to have fun with this witness list." Comment.
Neither development is positive. End comment.)


8. (SBU) The Court maintained July 5 as the firm start date
for Milosevic,s defense, with 150 sitting days allotted to
his case. Milosevic complained bitterly and unsuccessfully
about the lack of time he had to prepare witnesses and
present his case. He claimed, with support from the Amici,
that he had been unable to work at all for 41 days of the
preparation period and that that his work had been limited by
physician orders to three days a week. The Court extended
his opening statement to four hours, but left other aspects
of timing unchanged. The Court,s only acknowledgment of
Milosevic,s complaints was a vague reference to reserving
the right to be flexible during the course of Milosevic,s
presentation if it appears that a lack of preparation is a
valid concern.


9. (C) The hearing was the first public appearance of Judge
Bonomy (the English judge who replaced the ailing Judge May),
and the first time that Judge Robinson (the Jamaican judge
who assumed May,s role as presiding judge) ran the
courtroom. Bonomy participated in the proceedings and was
evidently up-to-date on the material. (Comment: In
conversations with our British colleagues we learned that
Bonomy has a reputation for speaking his mind and running a
very tight courtroom. End Comment). Judge Robinson performed
admirably, keeping Milosevic on a short leash, though
providing him with greater freedom to speak than Judge May
likely would have.


10. (SBU) The primary substantive issue of the conference
concerned Milosevic,s confidential and sealed witness list.
As described in ref B, Milosevic,s list includes roughly
1600 names (five times more than that called by the
prosecution),of which only 300 or so are named in the
document. The OTP complained that there was not enough
detail describing the witnesses and their relevance to the
case to allow for effective preparation of cross-examination.
(Comment: Some of the witness descriptions were extremely
"exiguous," in Nice,s term ) one witness was labeled simply
as an "academician," with no reference as to who he was or
the reason he was being called to testify. End Comment). The
Court rejected the prosecution,s request for more detail,
though it did require Milosevic, "where possible," to provide
the birth date of each witness. The Court also ordered
Milosevic to produce within seven days a list of his first 50
witnesses and the likely order in which they will be called.
The Court further ordered Milosevic to present his evidence
"in an orderly manner, bringing witnesses on an indictment by
indictment basis, except for overlapping witnesses."


11. (SBU) Milosevic pressed the Court to subpoena various
witnesses (including former President Clinton, Tony Blair and
Gerhard Schroeder) and documents (in particular those held by
"foreign intelligence organizations"). The Court indicated
that it was "not in a position to consider the Accused,s
oral application for the production of documents or
information from States, and that he should make his
application in writing and comply with any other procedural
requirements." Milosevic has thus far refused to submit any
written requests to the Court under his own hand (as a matter
"of principle") and thus the exact status of Milosevic,s
requests was left unclear. The Court also ordered Milosevic
to indicate whether he intends to testify during the defense
phase and, if so, when and for how long.

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Comment
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12. (C) The trial chamber,s Rule 98 bis judgment marks the
most significant milestone thus far in the trial of Slobodan
Milosevic. In effect, it is the trial chamber,s first
reaction to the prosecution case. As such, the prosecution
has reason to be happy, though not overconfident. The trial
chamber rejected dozens of specific incidents supporting
counts against the accused, but these were incidents for
which the prosecution largely conceded its failure to provide
sufficient, if any, evidence. The retention of the genocide
counts -- particularly the notion that Milosevic was involved
in a joint criminal enterprise to commit genocide -- suggests
that the prosecution succeeded in painting a picture of a
defendant who was much more involved in the Bosnian war than
he has admitted. That said, the 98 bis judgment reflects the
trial chamber,s reactions to a somewhat modest challenge to
the prosecution case. Typically, one expects a defendant to
challenge all charges with real vigor; here the defendant
refused to participate, let alone challenge the charges in a
legally (as opposed to politically) recognizable way and it
was left to the amici to pose a limited challenge to the
prosecution,s case.

13. (C) Milosevic,s approach gave no new indication that he
would present serious evidence to undermine the specifics of
the prosecution case. He continues to obsess over the senior
leadership of governments that dealt with him in the 1990s, a
tack that may very well further his domestic political
ambition to paint himself (and Serbia) as a victim of the
West, particularly NATO and its member states. But a
political case leaves him without any defense against the
specific charges brought against him. The summary judgment
motion gives some bait -- a roadmap for his defense, an
indication of what he needs to target -- but his performance
at the pre-defense conference gave no indication that he,ll
rise to take it.


14. (C) Beyond the questions of proof and defense, the status
conference demonstrated that Milosevic will play the
"fairness" card at every opportunity. To say that the trial
is unfair adds an entirely different layer of argument to his
ongoing rejection of the Tribunal,s authority to try him.
It helps paint himself as the victim against a well-resourced
prosecution, and his illnesses serve to buttress the point.
Milosevic is likely to play to the trial chamber on this
theme repeatedly, testing a presiding judge who has, in the
past, seemed most willing to indulge Milosevic,s claims of
unfairness. It will put the trial chamber in a difficult
position of balancing the tension between countering any
perception of unfairness to the defense and trial efficiency.
SOBEL