Identifier
Created
Classification
Origin
04THEHAGUE271
2004-02-03 16:50:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: NEW STRESSES IN THE MILOSEVIC TRIAL

Tags:  BK HR KAWC NL PHUM PREL SR ICTY 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 000271 

SIPDIS

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

E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: NEW STRESSES IN THE MILOSEVIC TRIAL

REF: THE HAGUE 176

Classified By: Clifton M. Johnson, Legal Counselor, for reasons 1.5 b,
d

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 000271

SIPDIS

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

E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: NEW STRESSES IN THE MILOSEVIC TRIAL

REF: THE HAGUE 176

Classified By: Clifton M. Johnson, Legal Counselor, for reasons 1.5 b,
d


1. (C) Summary. The trial of Slobodan Milosevic before the
International Criminal Tribunal for the former Yugoslavia
(ICTY) careens towards an interesting, difficult and
potentially explosive final few weeks of the prosecution's
case. In terms of testimony, the biggest grenade could come
in the form of the compelled February 10 testimony of Biljana
Plavsic, former co-President of Republika Srpska (RS),who
many in the Office of Prosecutor (OTP) believe is more likely
to hurt rather than help the prosecution case. The biggest
risk, however, may be less substantive than health related.
While the accused has the flu, leading to a cancellation of
proceedings on February 3, more significant is that Presiding
Judge Richard May, the dominant figure in the courtroom, is
suffering from an undisclosed illness that could require his
near term departure from the Tribunal -- casting the future
of the trial into question. Against this backdrop, the
Milosevic prosecution team, though racked by infighting and
potential personnel changes, worked to finalize its remaining
witness list. During the week of January 26, it presented
three expert witness who, in contrast to the drama behind the
scenes, testified soberly to the crimes committed in Bosnia
and the relationship between Serb and RS militaries. End
summary.

--------------
Judge May Ill
--------------


2. (C) Embassy legal officers learned February 2 that Judge
Richard May, the presiding judge in the Milosevic case, has
fallen ill with what may be a serious and progressively
worsening condition. Some prosecutors before his trial
chamber had begun to notice some abnormalities in his
behavior, such as incomprehensible statements from the bench
(May is well known to be an articulate and precise speaker

when presiding). Last week he received a medical evaluation,
the results of which are not yet known. The situation is
being considered very discretely by a small circle in the
ICTY. A number of sources consider the condition serious
enough that it may require May to step down from the
proceedings. They are focused on "getting through" the next
two weeks until the Prosecution adjourns in the hope that a
substitute judge, if needed, would have the three month break
to get up to speed on the case by the time Milsovic begins
his defense. (Comment. Embassy legal officers had not
noticed a significant change in Judge May's behavior, nor
have press observers. While the reports of May's illness are
credible and corroborated, until we obtain further details it
will not be possible to assess the full impact of his
condition on the case. End comment).

--------------
Plavsic and Perisic
--------------


3. (C) A trial chamber order granting the prosecution's
request to add Biljana Plavsic as a witness remains under
seal, though senior Tribunal leadership remained certain that
she would testify against Milosevic on February 10
(originally scheduled for February 4). See reftel. Her
testimony has become another point of contention between
senior prosecutors on the Milosevic team, but Emboffs
understand that Chief Prosecutor Carla Del Ponte has insisted
on seeking the subpoena that will bring her to The Hague to
testify.


4. (C) Embassy legal officers also learned that the courting
of Momcilo Perisic ended in failure, with one prosecutor
calling Perisic's interviews in The Hague "terrible." There
had been some hope within OTP that Perisic -- a one-time
senior military adviser to Milosevic, an important link
between Milosevic and Mladic on military matters, and a
potential indictee in his own right -- would provide
substantial evidence against his former boss. The interviews
conducted in The Hague proved otherwise, with Perisic
displaying a truculence that led him to being quickly
returned to Belgrade. His status as an investigative target
will be reported septel.

--------------
Personnel Changes on the Prosecution Team
--------------


5. (C) The intensity of focus on the closing weeks of the
prosecution case has not distracted the lead prosecutors from
their long-running clash over the prosecution itself. The
main source of friction, a poisonous relationship between
lead prosecutor Geoffrey Nice and senior trial attorney (for
the Bosnia portion) Dermot Groome, may be coming to an end
once the prosecution rests. Embassy legal officers have
learned that the chief prosecutor has decided to pull Groome
from the case once the prosecution rests and will ask Groome
to focus attention on Stanisic and Simatovic and take control
from Nice of the Perisic investigation/indictment. Groome,
disappointed by the move, has asked the Chief Prosecutor to
reconsider, having told her that he would not seek renewal of
his contract in May should he be taken off the Milosevic
team.

--------------
A Week of Expert Witnesses
--------------


6. (SBU) Dean Manning (OTP Investigator): The prosecution
called OTP Investigator Dean Manning to testify about a
report he prepared at the request of OTP on mass graves found
in and around Srebrenica. Manning has been investigating
mass graves around Srebrenica for over five years. He
testified that 2541 individuals have been found in the mass
graves. He noted, however, that this is an extremely
conservative number because the Serbs dug up and transported
bodies from primary grave sites using heavy machinery,
crushing the bodies and making accurate counts very
difficult. Milosevic suggested that the majority of the
bodies found in the mass graves around Srebrenica were those
of men killed in combat, and he asked the witness to testify
as to the gender and age of the victims, as well as to
acknowledge the fighting that occurred in the area. Manning
countered Milosevic's assertion by testifying about the
forensic evidence - noting that many of the victims were shot
in the back or the head, that their posture indicated that
their hands were tied, and that they often wore blindfolds
from the same cuts of fabric.


7. (SBU) Reynaud Theunens (ICTY Military Analyst): The
prosecution called ICTY military analyst Reynaud Theunens to
testify about a report he prepared at the request of OTP that
analyzed the role of the Yugoslav People's Army (JNA) in the
Croatian and Bosnian conflicts, specifically on its command
and control of Serbian armies, armed paramilitary and
volunteer groups. Theunens testified that the JNA developed
into a mainly Serb force whose goal was to consolidate
Serbia's control over Serb-populated regions of Bosnia and
Croatia. He stated further that this transformed JNA trained,
supplied, and assumed command of local Serb forces in Croatia
and Bosnia, reporting that "documentary evidence indicates
that Serb TO (territory defense) units and staffs operated
under single, unified command and control with the JNA." The
witness further testified that JNA assistance was authorized
at the highest levels of the JNA army and the Yugoslav
presidency, which prior evidence has shown was controlled by
Milosevic. Notably, Theunens provided documentation showing
that Milosevic received a daily combat report of the army of
the breakaway Serb republic, Republika Srpska Krajina (RSK),
which included information on what material support had been
provided to the RSK by the JNA.


8. (SBU) Theunens also testified about documentation that
showed that retired and active duty JNA officials served in
Serb armies in Bosnia and Croatia while continuing to receive
pay, benefits, and credit for time served from the JNA. He
went on to testify that JNA support was critical in Bosnia,
as the breakaway Serb republic, Republika Srpska, had almost
no independent war production capability. On cross
examination, Milosevic tried to characterize the JNA as an
intermediary that was separating warring factions in Bosnia
and Croatia, trying to set the JNA apart from the actions of
the Serb armies and paramilitary units. He also tried to
discredit the witness, highlighting his employment by the
ICTY as motivation for bias. Ultimately, however, the
voluminous military documents introduced through Theunens
provided significant evidence linking Serbia and the JNA to
the military actions committed by Serb forces in Bosnia and
Croatia. The testimony provided the Chamber with a fuller
understanding of the command and coordination between the JNA
and the multitude of Serb military, paramilitary, and
volunteer forces in Bosnia and Croatia. Most importantly,
the testimony indicated that Milosevic was far from ignorant
of this huge military apparatus and was in fact influential
in its decision-making.


9. (SBU) General Ferenc Vegh (Expert witness on military
command and control): Like Theunens, Hungarian General Vegh
was called to testify about a report he prepared at the
request of OTP, which focused on the military command and
structure of the JNA army. Vegh is the former commander of
the Hungarian army, and his credentials include a stint at
the U.S. Army War College. The prosecution's primary
interest in Vegh was his finding that Serb military and
paramilitary units in Bosnia and Croatia lacked the ability
to carry out independent military activities. From passing
out munitions to local forces, to coordinating sophisticated
offensives, Serb military and paramilitary forces required
superior orders from the JNA, which he noted had become a
tool for Serbia to achieve its political objectives.
Milosevic's cross-examination broadly attempted to couch the
JNA's activities as simply "raising the level of combat
readiness" in light of the proliferation of hostile
organizations such as the Croatian National Guards Force and
the Patriot League (an armed coalition of Muslim soldiers in
Bosnia). It was clear to the Chamber, however, that Milosevic
was using his cross-examination time to speech-make to the
gallery (which was packed to capacity for the first time in
several months due to visiting model-UN teams) about Bosnian
and Croatian militarization. Judge Robinson delivered an
unusual scolding to Milosevic, stating "normally I support
your requests for time-extensions... I will not do so this
time."

--------------
Comment
--------------


10. (C) The Milosevic trial faces a new and very tough
challenge in the form of Judge May's undisclosed illness. In
a courtroom of large personalities, May emerged long ago as
the dominant personality -- holding the prosecution to
schedules, keeping Milosevic on a fairly short leash but
allowing him reasonable room to represent himself, and
generally maintaining decorum in the face of a difficult
environment. His absence would be a significant loss, even
if a substitute judge were to be appointed. Moreover, a
decision to proceed with a substitute judge is subject under
the Tribunal Rules to an appeal directly to the full bench of
the appeals chamber. Even if such an appeal were denied (as
is more likely than not),the public perception of the trial
may well be tainted.


11. (C) In the trial chamber itself, the week presented a
juxtaposition of the two sides of the Milosevic prosecution:
On one side, observers saw the sober, careful presentation of
expert witnesses designed to explain to the chambers the
complex nature of Milosevic's relationship to Bosnian crimes
and Belgrade's military relationship with Bosnian Serb
forces. On the other, the long-simmering personality clash
between Nice and Groome continued to roil the prosecution
team. The options for Carla Del Ponte, who has tended to
play one off against the other and thereby contributed to
this tension, are not appealing: if she removes Nice
(extremely unlikely),she risks a major media storm, as the
removal of the public face of the prosecution would prove to
be a story of some note. Yet if she removes Groome, she will
lose the prosecutor most versed in the Bosnia counts -- which
are, incidentally, the hardest of the indictments to prove.


12. (C) Despite the personnel crises, the still important
questions concern how the prosecution will rest. Placing
General Morillon last on the witness list ensures that the
prosecutors will leave the chambers with a strong impression
created by an important witness. Yet the possibility exists
that Plavsic's testimony this week could set off fireworks
that ultimately undermine the prosecution's case. The
selection of Plavsic as one of the last witnesses suggests,
at the least, that some members of the prosecution team are
anything but confident about some key aspects of their case.
End comment.
SOBEL