ICTY: A PUNISHING WEEK FOR OTP

1. (SBU) Summary: It was a punishing week for the Office of
the Prosecutor (OTP) of the International Criminal Tribunal
for the former Yugoslavia (ICTY). On July 28, a trial
chamber ordered the provisional release of two of the
highest-ranking members of Slobodan Milosevic's inner circle,
Jovica Stanisic and Franko Simatovic. The next day, OTP
appealed. On July 29, in a remarkable reversal of one of the
ICTY's landmark decisions, the appeals chamber reduced the
sentence of Croatian General Tihomir Blaskic from forty-five
to nine years, most of which he had already served in ICTY
detention. Hours after the decision, President Theodor Meron
granted Blaskic early release (effective August 2).
Meanwhile, OTP struggles with the trial chamber and the
defense to find an appropriate way forward in the Milosevic
case. End summary.



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Stanisic and Simatovic


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2. (SBU) On July 28, a trial chamber (Judges Robinson, Kwon,
Swart) ordered the provisional release of Jovica Stanisic and
Franko Simatovic, both of whom were senior Serb Ministry of
Internal affairs (MUP) officials who worked closely under
Slobodan Milosevic. Both are charged with senior-level
involvement in a joint criminal enterprise to commit crimes
against humanity and war crimes in Bosnia and Croatia between
1991 and 1995. Both sought provisional release, which OTP
opposed. The Government of Serbia and Montenegro (SaM) and
of the Republic of Serbia both guaranteed that, should they
be released, they would be returned by Government authorities
as required by the Tribunal. In the case of Stanisic, the
trial chamber found persuasive several defense arguments,
including that Stanisic would have surrendered voluntarily
had he not been in Belgrade custody already (on unrelated
charges), and that, given the circumstances of Stanisic's
health, character and readiness to surrender, the SaM's
guarantee of his return to The Hague had merit. Similar
reasons, excluding health and character, were given for
Simatovic's provisional release. In both cases, the trial
chamber said that the seriousness of the crimes was "merely
one of the factors" to be taken into account. OTP has
already appealed the provisional release decisions; given the
Tribunal's recess, starting August 2, an appeals chamber is
not expected to rule before the end of August.



3. (SBU) The trial chamber's orders deserve special mention,
as they impose substantial requirements on Belgrade
authorities and the defendants. SaM officials are required
to take custody of the men at Schiphol Airport in The
Netherlands and accompany them to Belgrade. Both men are
required "to remain within the confines" of Belgrade during
their release period and "report each day to the police in
Belgrade." They are also required "to continue to cooperate"
with the ICTY and to allow "occasional, unannounced visits"
by either SaM or ICTY officials. SaM would bear the costs of
the defendants' transport, accommodation and security
expenses, and facilitate communications between the Tribunal
and the defendants, in addition to the requirement to
transfer them to The Hague when necessary.



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Blaskic Reversal


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4. (SBU) In a 260-plus page decision and several more pages
in dissent, the Appeals Chamber all but overturned a Trial
Chamber's judgment of guilt and punishment of former Croatian
general Tihomir Blaskic, one of the most senior-level
indictees brought before the Tribunal to date. Blaskic's
45-year sentence was reduced to nine years, which -- due to
more than eight years of time served -- led President Meron
to reduce the remaining months of the sentence and grant
Blaskic his freedom as of August 2. In a stinging rebuke to
a trial chamber that included Judges Claude Jorda (a former
ICTY President now on the bench of the International Criminal
Court) and Mohamed Shahabuddeen (current ICTY appeals judge,
formerly of the International Court of Justice and a
well-known figure in international legal circles), the
appeals panel said the lower chamber's ruling was replete
with legal, factual and evidentiary errors. It reversed
Blaskic's convictions on counts related to crimes against
humanity (including persecutions, injury and murder), and war
crimes (including unlawful attacks on civilians and civilian
objects, killings and causing serious injury, plunder,
destruction of cultural property). It upheld three counts of
inhumane/cruel treatment of protected persons related to
Blaskic's use of detainees both as human shields and as free
labor for the construction of defensive military
installations.



5. (C) Citing evidence that had become available to the
Tribunal following the 1999 death of Croatian president
Franjo Tudjman (and which came to light after Blaskic's
trial), and critical of both the lower court's reasoning and
the OTP's "vague" indictment, the appeals chamber examined
substantial portions of the case "de novo" -- that is, with
little or no deference paid to any aspect of the Trial
Court's holding. In particular, the Appeals Chamber made
clear that the new sentence it prescribed was not a revision
of that mandated by the Trial Chamber, but a complete
substitution. One senior prosecutor told embassy legal
officer of his view that the appeals chamber made a number of
errors of its own related to a lack of familiarity with the
case. They expected a "bad" decision, he said, in part
because OTP lawyers privately acknowledge that the trial
chamber decision was weak in many places; they did not expect
the near-total loss handed down yesterday.



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Severence and Counsel Issues in Milosevic


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6. (SBU) As noted reftel and previously, the Milosevic trial
chamber is struggling to determine how the defense case can
proceed in a way that is not susceptible to the fits and
starts related to the defendant's ill health. The Tribunal
appears focused on two potential solutions: the first would
involve some form of imposition of defense counsel on
Milosevic; the second would involve a severance of the three
indictments (Kosovo, Croatia and Bosnia), proceeding one by
one rather than all at once. Embassy has obtained OTP's
submissions to the trial chamber on both issues (emailed to
L/EUR - Lahne and L/AF - Taft). With respect to imposition
of defense counsel, OTP considers the question to be, "how
does a chamber stop an accused from hi-jacking a trial to his
or her own agenda . . . while still ensuring that the rights
of the Accused are respected." It advocates "the removal of
the Accused's right to act pro se in all aspects of
preparation and presentation of his defence." Because of his
poor health, he is "unable any longer to appear without the
assistance of counsel," though OTP grants that he "could
still be permitted to ask questions and make submissions in a
regulated manner." OTP provides an interesting and thorough
review of practice on these questions in international
tribunals and domestic courts.



7. (SBU) OTP makes an equally strong (if briefer) argument
against severance of the Milosevic indictments. Its main
argument is somewhat defensive, leading with the position
that the trial has not become unmanageable and that the
amount of time devoted to the trial compares favorably to
similarly complex cases before national and other
international jurisdictions. Severance, in OTP's view, would
be "premature and may be driven by speculation and an
excessive concern for appearances not realities." The
prosecutors argue that severance "now would be to make an
irreversible error," one that undermines the integrity of the
trial as a whole. It also offers a host of practical
objections, including that severing the Kosovo indictment --
and failing to reach the Bosnia indictment -- would mean that
Milosevic was never able to disprove charges of genocide
lodged against him. The amici curiae (friends of the court)
make an equally strong argument against severance, saying
that they are relaying Milosevic's objections. His
objections, they say, are focused on the fact that the
Prosecution has presented a case alleging his overall efforts
to create a "greater Serbia" involving Kosovo, Croatia and
Bosnia; he must thus be allowed to address that case in the
way it was put against him. They also note a variety of
considerations of fairness, burden and practicality that
argue against severance.



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Comment


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8. (C) To be sure, OTP suffered two setbacks this week in the
Stanisic/Simatovic provisional release and the Blaskic
appeals decision, deepening the low morale due to the budget
crisis and related staffing uncertainties. But these two
decisions are interesting in ways that go beyond OTP's
immediate equities. First, the provisional release decision
involved a specific rejection of OTP's argument that Belgrade
guarantees were insufficient given its current failure to
cooperate with the Tribunal across a whole range of issues.
The trial chamber ignored the general claims and instead
examined closely the individual circumstances of each
indictee; even more than in past cases, it may be that
character, acts of cooperation and other issues specific to
each person are likely to prevail over more general concerns.
Second, the Blaskic decision is remarkable not only on the
substance -- which Embassy legal officers will continue to
study -- but also in its assertive review of a respected
trial chamber's decision. The activist stance of the appeals
chamber, and the fact that Blaskic is the senior-most
indictee to be released, promises to impact other ICTY cases
currently in trial or under appellate review. The connection
to the Milosevic case is that, from here on out, the trial
chamber and OTP should expect that every decision of
importance is likely to get the strict scrutiny -- if not de
novo review -- of the appeals chamber. Especially in
fundamental areas of fairness, reflected in the arguments
related to counsel and severance in Milosevic, it has become
clearer that the trial chamber's decisions will play out not
only in public opinion but in actual judgments of the
Tribunal itself. End comment.
SOBEL