ICTY: MILOSEVIC TRIAL PICKS UP WHERE IT LEFT OFF

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002678

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS,
EUR/SCE - ENGLISH/GREGORIAN/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: MILOSEVIC TRIAL PICKS UP WHERE IT LEFT OFF


Classified By: Deputy Legal Counselor David Kaye per 1.5(d).


1. (SBU) Summary. The trial of Slobodan Milosevic before the
International Criminal Tribunal for the former Yugoslavia
(ICTY) resumed on October 12 after a one-month hiatus, the
bulk of its time devoted to a status conference in which
assigned defense counsel Steven Kay updated the court on his
ongoing (and mostly futile) efforts to bring witnesses to
testify at the court. Kay is in the process of preparing
applications for subpoenas. Meanwhile, the appeals chamber
will hear arguments October 21 on Milosevic's interlocutory
appeal of the order assigning him counsel. End summary.


2. (SBU) The resumed defense case began with defense witness
Franz Josef Hutsch, a German war correspondent and former
major in the German Army, who gave testimony about his time
as an embedded reporter with the KLA. Hutsch described the
KLA command structure, uniforms, and armaments, but went on
to testify that between 80 and 120 KLA officers were of other
nationalities, particularly of Arab descent, and were
recruited in increasing numbers to work with individual
brigades. Much of his testimony described what he believed to
be the KLA's strategy of provoking Serb police and military,
expecting to elicit excessive retaliation. At the conclusion
of Kay's examination, Milosevic was given the opportunity to
question Hutsch but refused and said he would re-call Hutsch
once his right to represent himself was restored.


3. (SBU) In the status conference on October 13, Kay informed
the court that his staff had contacted over 150 witnesses on
Milosevic's list to seek their testimony. As of September 28,
the date of the defense's most recent court filing on the
topic, 92 potential witnesses had been contacted. Since then,
the number has risen to over 150, with the defense team using
all known telephone numbers, email addresses, and physical
addresses. Kay pointed out that reaching people by telephone
has been difficult, but the defense has gotten through to
over 130 potential witnesses. Of these, a &large number8
refused to testify.


4. (SBU) Of those refusing to testify, some said they would
reconsider after the appeals chamber rules on the assignment
of defense counsel to Milosevic, but the majority objected on
principle and say they will not testify regardless of the
outcome of the interlocutory appeal. Still others, Kay said,
were surprised to find they were on the witness list and
protested that they had nothing relevant to contribute, a
position Judge Bonomy said was a legitimate reason for not
testifying. Judge Robinson pressed Kay on whether those
refusing to testify pending the outcome of the appeal would
appear after the appeal, or if their testimony was contingent
on a particular outcome. Kay was uncertain.


5. (SBU) In addition to the 150 potential witnesses contacted
directly, Kay has compiled a list of 20 potential witnesses
whom he is contacting through diplomatic channels and whose
names he has provided to the court in an ex parte filing.
These people, described as representing a good cross-section
of the case, are "internationals" and "insiders" and
primarily state officials. He has sought the assistance of
the ICTY Registry and has asked the officials' respective
governments to ensure their cooperation, but pointed out to
the trial chamber that the process is now beyond his control.


6. (SBU) Kay also used the status conference to combat false
statements about the conduct of the trial. The first was the
allegation that defense counsel had bought the witnesses who
have so far appeared. Calling it "ridiculous," Kay actually
elicited a joke from Judge Robinson about the amount of money
the defense team has. But he went on to address a more
pervasive story circulating: that Milosevic has instructed
his witnesses not to appear. Of the witnesses who have
appeared, Kay reported that none were encouraged not to
testify by Milosevic. Prosecutor Geoffrey Nice objected to
this point, recalling that Milosevic previously in open court
expressed his wish that his witnesses not appear. Nice went
on to encourage the court to pose the question directly to
Milosevic so that he might set the record straight. The court
did not respond to this suggestion.


7. (SBU) Given the chance to speak at the status conference,
Milosevic railed against his counsel and the court, saying
his counsel's examination of the witnesses was inadequate and
that the court's order to impose counsel had no legal
validity "except here, where the law is not abided by or
respected." Judge Robinson responded sternly, saying gaps in
Kay's examination were on Milosevic's head because Milosevic
was each time given the opportunity to question the witnesses
and each time refused, a decision that Judge Robinson said
was "beyond his comprehension." In response to Milosevic's
protest that the entire examination was so lacking that he
could not fix it with a few questions, Judge Robinson
responded strenuously again, pointing out that it is
Milosevic's prerogative to instruct Kay and build the case as
he sees fit.


8. (SBU) Kay is in the process of preparing applications for
compulsory orders to compel witnesses to testify (i.e.,
subpoenas). He informed the court that he hoped to file the
applications on Thursday, October 14, and the court expressed
the possibility of a hearing on the matter on Monday, October

18.


9. (C) Comment: The Milosevic defense case picked up this
week just where it left off a month ago: a marginal witness,
defense counsel,s hand-wringing over the difficulty of
bringing witnesses to The Hague, complaints by the accused
that he is being denied his rights, tough responses by the
trial chamber, and an outstanding appeal. At this rate, the
prosecution team's private predictions of an early conclusion
to the case appear reasonable. The one thing that could
change the equation is the appeals chamber: if, for instance,
the chamber upholds the imposition of counsel (as is widely
expected) but modifies the modalities, giving Milosevic more
control over his defense, one could expect many witnesses to
agree to participate. The public hearing by the appeals
chamber next week may shed some light on its thinking, and
the future course of this trial. End comment.
SOBEL