ICTY - MILOSEVIC WITNESSES ADVANCE POLITICAL CASE

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 003255

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS,
EUR/SCE - GAUDIOSI/GREGORIAN/MITCHELL, L/EUR - KJOHNSON,
L/AF - GTAFT. 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 - MILOSEVIC WITNESSES ADVANCE POLITICAL CASE


Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d).


1. (SBU) Summary. Having regained control of his defense case
before the International Criminal Tribunal for the former
Yugoslavia (ICTY),Slobodan Milosevic questioned a string of
Russian witnesses and a former Yugoslav official over the
past two weeks, focusing much of their testimony on
corroboration of Milosevic,s version of Yugoslavia,s
history. Several of Milosevic,s witnesses testified that
the West had a plan to invade Kosovo rather than to pursue a
political solution, and each addressed the issue of Greater
Serbia, the concept the prosecution has said Milosevic used
to inspire nationalism and justify his aggressions in the
former Yugoslavia. The trial chamber sought documentary
evidence from the witnesses and, at one point, in light of
the absence of such evidence, Presiding Judge Patrick
Robinson commented that the testimony would carry less weight
as a result. Separately, the trial chamber rejected defense
counsel,s outstanding request to withdraw from the case on
ethical grounds. End summary.

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Defense Counsel Must Stay
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2. (SBU) On December 7, the trial chamber issued its denial
of defense counsel,s application to withdraw from the case.
The decision reiterated the trial chamber,s right to assign
counsel to an unwilling accused and rejected concerns that
noncooperation by the accused creates an ethical obligation
for assigned counsel to withdraw. The Chamber ruled that
given that it can assign counsel in this circumstance - a
power affirmed by the appeals chamber in its recent ruling in
this case - allowing counsel to withdraw based on
noncooperation would eviscerate this power. Further, getting
to the crux of defense counsel Kay,s and Higgins,
application to withdraw, the Chamber held that noncooperation
does not mean that counsel is not meeting its obligation to
act in the accused,s best interests.

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The Accused,s Witnesses
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3. (SBU) Former Soviet prime minister Nikolai Ryzhkov, who
was a member of the Duma during the Kosovo conflict,
testified that NATO planned as early as 1998 to invade Kosovo
and that such invasion was an act of aggression on a
sovereign state. For the latter propositions, in which he
invoked the term genocide,, he cited Duma resolutions from
1998 and 1999, which Judge Robinson pointed out were not, as
the opinions of a national parliament, helpful to the trial
chamber. Ryzhkov also asserted that Kosovo Albanian
separatists were terrorists financed by European and Middle
Eastern countries, as well as drug smuggling, and that there
were 800,000 mercenaries among them. He offered no documents
to substantiate this claim. With respect to the Greater
Serbia issue, Ryzhkov stated that he had never discussed the
issue with Milosevic or any Serbian officials.


4. (SBU) Milosevic,s next defense witness, Leonid Ivashov,
made a variety of accusations concerning a purported U.S. and
NATO plan to attack and dissolve Yugoslavia. At the time of
the NATO intervention in Kosovo, Ivashov presided over a
directorate at the Ministry of Defense within which was a
special section studying the situation in Kosovo,
particularly the &terrorist organization KLA.8 Pressed by
the judges on numerous occasions for the bases of his
conclusions, Ivashov cited information from the Russian
embassy, daily contact with high-level NATO and member state
representatives, contacts in other states, and open sources,
but offered no documents into evidence. The thrust of the
assertions, provided usually by Milosevic himself in a series
of leading questions, was that Rambouillet was a farce, in
spite of Milosevic,s interest in a political solution,
because the West had long since decided it was going to
invade Kosovo. For this proposition, Ivashov cited the
&media warfare8 begun by propaganda aircraft deployed in
Macedonia, a U.S. Army document exposed later by lead
prosecutor Geoffrey Nice as a decades-old policy paper, the
military alliance between NATO and the KLA begun in 1998, the
upgrade of military infrastructure near the Yugoslav borders
in 1998, and a U.K. regiment transferred to Macedonia with 80
intelligence units for radio surveillance.


5. (SBU) Former Russian Federation prime minister Yevgeny
Primakov similarly described the NATO invasion as a fait
accompli. He described the civil war as one influenced by
"external intervention," meaning a Western intention to
expand the NATO sphere of influence, and the Kosovo conflict
as one instigated by Albanian separatists and prolonged
because of NATO,s longstanding plan to invade rather than
use diplomatic means to end the conflict. Primakov, who
headed Russia,s intelligence service during the years at
issue, said his government determined that NATO, and
particularly the United States, was "persistent and insistent
in following the course of weakening Serbia." He also cited
Milosevic,s commitment to the Vance-Owen Plan and the
subsequent embargo Milosevic placed on Republika Srpska,
though this was undercut by Nice,s quotation of Milosevic on
another occasion saying the embargo was a formality and aid
went across the border regularly. Much was made of
Primakov,s assertion that Milosevic told him that Greater
Serbia was not an option because it would require bloodshed,
something Milosevic did not want. In cross-examination based
on passages from Primakov,s book, prosecutor Nice showed
that Primakov actually made these statements himself, to
which Milosevic apparently acquiesced, but Primakov in his
testimony did not admit to seeing a difference between the
words being his or Milosevic,s. Nice went further on the
Greater Serbia issue, citing conversations to which Primakov
was not a party in which Milosevic indeed did make comments
about uniting the Serb population in one nationality, of
which Primakov acceded that he was unaware.


6. (SBU) Finishing off set of witnesses, Milosevic questioned
Vukasin Jokanovic, former speaker of the Kosovo Assembly and
an ally of Milosevic from his time in the Yugoslav
government. Jokanovic testified that the Albanian separatist
protests of 1981 were not suppressed by Serb forces, but
rather federal forces under Slovene command, and that the
1989 legislation limiting Kosovo,s autonomy was endorsed by
many Albanians in the regional assembly. Jokanovic testified
that this change to the Serbian Constitution was begun under
Milosevic,s predecessor, and it had the support of officials
from several republics, a statement for which Milosevic
offered supporting documents from a meeting of the Yugoslav
League of Communists. Intended to refute the prosecution,s
testimony from Ibrahim Rugova, which asserted that Albanian
representatives were pressured to accept the legislation,
Jokanovic,s testimony claimed that the vote - far from being
held in the hostile circumstances Rugova described - was held
in a "solemn and democratic atmosphere" and denied knowledge
that it was being challenged before the Constitutional Court
of Kosovo.

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Comment
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7. (C) The accused is clearly now in control of his case: he
selects the themes, questions the witnesses, responds to the
chamber, and sets the tone for each day,s proceedings. All
of this, though, is by no means in the Accused,s own best
interests. While Milosevic,s latest tranche of witnesses
advanced his political case by delivering a version of events
that tracked his worldview, they did very little to advance
his legal case by countering the specific allegations
against. Meanwhile, assigned defense counsel sat quietly in
the background, a shadow of their previous roles as amici
curiae (friends of the court) and, briefly, as frustrated
lead defense counsel. Their continued presence has now been
mandated by the trial chamber, and we expect that they will
remain quiet until Milosevic,s health takes its inevitable
downturn. At that point the real test will be whether they
are capable of picking up where Milosevic leaves off and the
amount of cooperation provided by the accused. Given the
trial chamber,s resolve to hold Milosevic to the days
allocated for his defense, and the presence of assigned
counsel, we expect that the trial chamber would have no
tolerance for any delays caused by health reasons. If
Milosevic, through non-cooperation, fails to make use
effectively of what has now become, in practice if not
formally, stand-by counsel, we expect the Chamber to simply
count that time against Milosevic and not extend the defense.
RUSSEL