Identifier
Created
Classification
Origin
04THEHAGUE498
2004-02-26 17:16:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: MILOSEVIC PROSECUTION LIMPS TO CLOSE ITS CASE

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 05 THE HAGUE 000498 

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: 5 YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: MILOSEVIC PROSECUTION LIMPS TO CLOSE ITS CASE


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

C O N F I D E N T I A L SECTION 01 OF 05 THE HAGUE 000498

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: 5 YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: MILOSEVIC PROSECUTION LIMPS TO CLOSE ITS CASE


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


1. (C) Summary. The Milosevic Prosecution team of the
International Criminal Tribunal for the Former Yugoslavia
(ICTY) closed its case in the anti-climactic form of a motion
to Trial Chamber III on February 25. The recent melodrama of
the Milosevic prosecution -- the rancorous internal debates
over potential witnesses such as Biljana Plavsic, the
expectations of introducing what some considered "smoking
gun" documents, the dramatic deterioration in Presiding Judge
Richard May's health, a return to illness for the accused,
the near-resignation of lead Prosecutor Geoffrey Nice -- had
turned the prosecution into what Nice called "a muddle". The
Prosecution is now trying to clean its own house and turn its
attention to wrap-up elements of its case and preparations
for the defense phase, which the trial chamber scheduled to
begin on June 8. The uncertainties of the past weeks
overshadowed some interesting evidence adduced in the final
weeks of the proceedings. End summary.

--------------
The Anticlimactic Closing
--------------


2. (C) Prosecutors filed on February 25 a "notification of
the completion of its case and motion for the admission of
evidence in written form" with trial chamber III. While the
bulk of the motion deals with some evidentiary wrap-up
issues, the motion leads off by noting "with great regret"
the illness and resignation of Judge May, which although
effective May 31 was announced by President Theodor Meron on
February 22. (NB: It is understood that Judge May is no
longer participating in the trial chamber's substantive
deliberations and that Judge Patrick Robinson, the next
senior judge in the trial chamber, is likely to be bumped up
to preside.) It went on to suggest that "the resignation may
pose serious difficulties for the overall timetable of the

case," though such difficulties "are not entirely
predictable" at this time. It suggested that the
difficulties may delay the start of the accused's case and
could be due in part to the need of a newly assigned judge to
become familiar with the case (noting the relevance of Rule
15bis of the Rules of Procedure and Evidence). It concluded
its short introductory section by saying that, "(w)ith these
consideration in mind and with concern for the due
administration of justice and judicial economy the Prosecutor
closes the case by this filing on the basis of all evidence
already adduced . . ."


3. (U) The trial chamber responded unprecedentedly quickly to
the motion, suggesting that the kabuki had been rehearsed.
According to an ICTY press release, the trial chamber
"confirmed that 'the Prosecution case is hereby closed.'" It
made several further noteworthy orders:
-- The trial chamber ordered that "any motion under Rule
98bis shall be filed by the Accused or Amici Curiae by
Monday, 8 March 2004," to which the Prosecution shall respond
by March 22. A Rule 98bis motion is a motion for summary
judgment, according to which the accused/amici may seek
acquittal on "one or more of the offences charged in the
indictment".
-- It required the accused to produce a list of witnesses he
intends to call and exhibits he intends to offer by April 12.
-- It scheduled a "pre-defence conference" for May 17, 2004.
-- It scheduled the commencement of the defense case for
Tuesday, June 8, giving the accused 150 days to present his
case. (At three days per week, the allotment of days amounts
to nearly one year; based on holidays and other anticipated
weeks off due to sickness or other difficulties, it should be
expected that the defense -- assuming use of all 150 days is
made -- would extend well into the summer of 2005, if not
beyond.)

--------------
The Tumult of Recent Weeks
--------------


4. (C) Senior prosecutors and investigators shared with
embassy legal officers in recent days their disappointment in
the closing weeks of the case. Geoffrey Nice called it "a
muddle" and said that the past three weeks -- during which he
vigorously sought a revelation of Judge May's situation to
the accused -- were the hardest of the two-year-plus trial
for him. Because of the internal battles, especially with
Carla Del Ponte over whether the prosecution had an ethical
obligation to advise the accused of Judge May's likely
resignation, he expected as of the end of last week that he
would resign the case. May's resignation, however, has put
that trouble behind them, and he said that he and Del Ponte
were "in a period of dtente." Dtente or not, Nice expects
further friction with Del Ponte, who has participated more
actively in Milosevic team's trial decisions since the new
year than she had ever done previously. For her part, Del
Ponte told Embassy Legal Counselor that she had "worked well"
with President Meron on the May situation and that she had to
show Nice that she was the boss.


5. (C) At the heart of internal troubles on the team was
Nice's relationship with senior trial attorney (STA) Dermot
Groome. While there is little sign that the relationship has
improved, Groome told embassy legal officer late February 26
that Del Ponte has asked him to oversee the Bosnia portion of
the defense case. As a result, he feels confident now that
he will remain on the Milosevic team beyond May, when his
contract expires.


6. (C) Other prosecutors and investigators were disappointed
with their inability to introduce further evidence into the
record. Biljana Plavsic, for instance, had been scheduled to
testify at the beginning of February, but the accused's
illness and strenuous debate within the Milosevic team put it
off to a point where the team realized that it would not be
possible to call her. Similarly, there was hope that the
prosecution would call Carl Bildt; in the absence of such an
opportunity, the prosecution, with Bildt's apparent consent,
is likely to ask the trial chamber to call Bildt as a court
witness. According to STA Groome, a key insider had been set
to testify this week on Belgrade-Pale connections, while some
expert testimony by a demographer would have demonstrated the
"ethnic cleansing" effects of Republika Srpska Army (VRS)
actions. Some of the evidence, Groome hopes, will be
introduced during a short rebuttal phase of the proceedings
following the defense.

--------------
Looking Ahead to the Defense
--------------


7. (C) Several members of the prosecution team are now
looking ahead and preparing for the defense phase. Lead
among them is STA Groome, who told emboff that Milosevic
apparently does intend to submit a witness list of 900
individuals. Groome's main interest will be in undermining,
at a very early stage, the credibility of the witnesses
Milosevic calls. He noted that in the Brdanin case,
prosecutors so effectively undermined the defense witnesses
that the defense ultimately rested without calling over fifty
individuals on its witness list. Groome hopes that he can
obtain a "demonstration effect" so that Milosevic understands
that his witnesses are not giving him the help he needs.


8. (C) Groome and others also believe that they will have far
beyond June 8 until the defense case begins. Two main
problems exist: First, it remains unclear when the
replacement judge for Judge May will join the chamber. While
there is some discussion of finding a judge who can "read
into" the case even before an official appointment, Nice and
Groome have identified a host of problems with such an
approach, including funding. Secondly, a new judge will have
nearly 50,000 pages of documents to review, following which
he or she will need to "certify" familiarity with the case.
Finally, the summer recess would intrude just as the defense
begins. All in all, Groome believes the defense case will
not in fact begin until well into September, if that.

--------------
Final Witness Testimony
--------------


9. (SBU) Despite the tumult of recent weeks, the prosecution
was able to put on some important witnesses during the final
days of its case-in-chief, focusing on Srebrenica. The
prosecution used witness testimony to establish that
Milosevic had knowledge of the siege of the city, that JNA
troops were complicit, and that Milosevic had the control and
influence to reign in the Bosnian Serbs. Witnesses during
the last week of the case included General Phillipe Morillon,
the French UNPROFOR commander who famously promised the
Bosnians in Srebrenica that the UN would "never abandon
them." Also testifying was the Venezuelan perm rep to the UN
during the war in Bosnia, who in his testimony sharply
criticized the UN for not doing more to prevent genocide in
Bosnia.


10. (C) Throughout the last week, after a week's
postponement due to illness of the accused, Judges Robinson
presided over a Chamber that included only himself and Judge
Kwan. The only allusion made to Judge May's empty chair was
Robinson's comment that Judge May was "indisposed" and that
he and Judge Kwan were sitting pursuant to Rule 15 bis (which
authorizes that, in light of the illness of a judge for a
short duration, the remaining judges can continue to hear the
case for a period not to exceed 5 working days). Robinson was
somewhat more tolerant of Milosevic's speech-making than May
had been, periodically interrupting or stating quietly, "it
is time to ask the witness a question now, Mr. Milosevic."
Judge Robinson has also been very accommodating to
Milosevic's requests for more time for cross-examination,
where Judge May was normally stingy in giving additional
time. Still, Robinson showed some skill in controlling
Milosevic and seeing the proceedings through the completion
of this phase.


11. (SBU) Testimony of General Philippe Morillon (Former
Commander of UNPROFOR): In his capacity as commander of
UNPROFOR between 1992 and 1993, Morillon went to Srebrenica
to assess the humanitarian situation of the tens of thousands
of Muslim civilians who had fled there to escape the Serb
offensive in surrounding areas. Morillon made the visit to
Srebrenica in March 1993, when the city was surrounded by
hostile Bosnian Serb forces. Following his visit, Morillon
met with Milosevic in Belgrade and warned him that a terrible
tragedy would take place in Srebrenica if Milosevic did not
intervene. (Morillon refused to be specific about how he
know a tragedy was imminent, but during that period the
Muslims could no longer hold their defensive positions
against the Serbs, and the town was also on the brink of
starvation). According to Morillon, Milosevic was able to
clamp down on Bosnian Serb military commander Ratko Mladic,
whose troops were poised to take the town. The implication
is that Milosevic had some level of authority over Bosnian
Serb leadership and was able to temporarily avert
Srebrenica's fall to the Bosnian Serbs. Milosevic countered
that it was Mladic who was responsible for the siege of
Srebrenica and the subsequent massacre of its people in 1995,
to which Morillon retorted, "Mladic obeyed none but himself,
but when I went to Belgrade, I went to save the people of
Srebrenica, and he was still obeying you. He stopped obeying
you. But thanks to you, I was able to meet with him in
Belgrade." Morillon also testified that he sought Milosevic's
aid to stop the Bosnian Serb shelling of Sarajevo
temporarily. For the prosecution, his testimony seemed to be
a mixed blessing because, while he was clear that Milosevic
initially exerted influence over Mladic in 1993, he was
muddled over whether Milosevic could control Mladic in the
lead-up to the Srebrenica massacre of 1995.


12. (C) Morillon's testimony was both compelling and
emotional. When he traveled to Srebrenica in March 1993, he
was effectively taken hostage by the Bosnian leadership there
and released only when he promised to go to Belgrade and
negotiate an end to the Serb assault. While in Srebrenica,
he gained notoriety by unilaterally promising UN support to
the besieged population, walking onto a public balcony and
proclaiming into a loudspeaker "I will never abandon you", an
act which ultimately forced the UN to designate Srebrenica as
a UN "safe haven." Morillon's anger and feeling of personal
responsibility for the massacres in July 1995 around
Srebrenica was palpable in his testimony. During cross
examination, for example, he angrily told Milosevic, "History
will tell that you are one of those responsible for having
sowed this fear, for having armed, for having pushed those
who were unleashed, became enraged and escaped your control."


13. (SBU) Diego Enrique Arria (Venezuelan permrep to the UN):
Arria served as Venezuela's permanent representative to the
UN during the war in Bosnia. The prosecution's primary
interest in Arria was his testimony that Milosevic knew about
extremely inhumane conditions in Srebrenica. Through Aria,
the prosecution introduced into evidence numerous reports
reviewed by the UN Security Council (UNSC) that documented
inhumane conditions, ethnic cleansing, and other crimes
against the Bosnian Muslims in Srebrenica, including letters
from the UN High Commissioner for Refugees and a ruling from
the ICJ requiring the Federal Republic of Yugoslavia to take
immediate action to prevent genocide from occurring in
Bosnia. Arria testified that the Yugoslav ambassador to the
UN prepared informed reports about this documentation,
indicating that all of the information reviewed in the UNSC
was available to the accused. The testimony serves as
evidence that Milosevic had notice that the Bosnian Serbs
were on the brink of committing genocide in Srebrenica in
1993; it also serves as a serious condemnation of the UN and
the international community, who were also on notice about
the imminence of the genocide (Arria characterized it as
"slow motion genocide") but allegedly remained largely
indifferent to the conflict. In the course of his testimony,
Arria made harsh accusations against the UN, stating that the
international community paid more attention to the Iraqi
invasion of Kuwait and did nothing to protect Bosnia because
it feared the presence of a Muslim state in Europe.
--------------
Comment
--------------


14. (C) The Prosecution case against Slobodan Milosevic ended
with a barely audible whimper. Prosecutors were too busy
licking their wounds from bruising internal battles while the
remaining Milosevic investigators (and STAs on other teams)
could only shake their heads in disbelief at the
self-destructive antics. While the team appears to have
moved into a general period of, in Nice's word, dtente, the
poor handling of the closing weeks does not bode particularly
well for the next phase of the case. On the other hand,
Groome's remaining on the team would appear to provide the
team with a vision and the wherewithal to deal with the
dozens of witnesses Milosevic is likely to call to his
defense. One can only hope that Nice and Groome in
particular can find an m.o. according to which they can
operative effectively.


15. (C) Beyond the prosecution, however, the chambers now
face a new set of priorities, the resolution of which could
have a major impact in how the trial is viewed beyond The
Hague. First among them is finding a replacement for Judge
May. Just how that will be done in the light of an
end-of-May effective date for the resignation is unclear, and
we have some concern that it has not been well thought
through. For instance, if his resignation is only effective
May 31, it remains difficult for a judge to be selected
before then to replace him on the trial chamber. As a
result, one can expect delays well beyond June as a new judge
is selected (or elected by the UN General Assembly) and then
familiarizes himself or herself with the thousands of pages
of transcripts and evidence introduced since the trial began
over two years ago. Moreover, one can only speculate as to
how Milosevic or the amici will respond to May's departure.
The trial may continue "only . . . with the consent of the
accused," according to Rule 15bis, which Milosevic is
unlikely to give in light of his long-stated non-recognition
of the Tribunal's legitimacy. In that case, the remaining
judges may continue the trial "if, taking all the
circumstances into account, they determine unanimously that
doing so would serve the interests of justice." Such a
determination is subject to appeal "by either party," and one
might expect that the amici will be given leave to make such
an appeal if Milosevic does not do so. In any event, the
June start-date of the defense case would appear unrealistic.


16. (C) Even apart from the final days of crisis at the
Tribunal, observers are already assessing whether the
prosecution did what it had to do to obtain a conviction on
some or all of the counts of the indictment. Some clarity in
this respect may come with the summary judgment motion likely
to be filed by the amici and the response to be filed by the
prosecution, giving observers a useful opportunity to see
whether the chambers believe the prosecution made out at
least a prima facie case on key counts of the indictment.
(Even here, however, May's departure raises a concern as to
whether a two-judge chamber can rule on the summary judgment
motion, or whether judgment on the motions may be delayed
until long after a replacement judge comes on board.) Many
consider the Kosovo case to have been made exceptionally
well, the Croatia case somewhat less so, and while the Bosnia
case was also well-done, it presented the prosecution with
its most difficult evidentiary tasks of all.

17. (C) Nice in particular is fond of reciting his concern
for the place of the Milosevic prosecution in the history
books. One hopes that his prosecution team will use the
months ahead not only to reflect on the history of the
trial's close, but also whether there are any lessons that
they may apply to conclude the case in a less rancorous, more
effective way.
SOBEL