Identifier
Created
Classification
Origin
08THEHAGUE556
2008-06-27 17:28:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: WITNESS TROUBLES AT THE SESELJ TRIAL

Tags:  ICTY SR BK HR KAWC PREL 
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O 271728Z JUN 08
FM AMEMBASSY THE HAGUE
TO SECSTATE WASHDC IMMEDIATE 1678
INFO EUROPEAN POLITICAL COLLECTIVE IMMEDIATE
AMEMBASSY BELGRADE IMMEDIATE
AMEMBASSY SARAJEVO IMMEDIATE 
AMEMBASSY SKOPJE IMMEDIATE 
AMEMBASSY ZAGREB IMMEDIATE 
AMEMBASSY PRISTINA IMMEDIATE 
DIA WASHDC IMMEDIATE
CIA WASHDC IMMEDIATE
SECDEF WASHDC IMMEDIATE
C O N F I D E N T I A L THE HAGUE 000556 


DEPARTMENT FOR S/WCI - WILLIAMSON/SHIN/LAVINE/VIBUL,
EUR/SCE - STINCHCOMB, L/CID - KJOHNSON, INR/GGI -
MARGULIES, USUN - WILLSON

E.O. 12958: DECL: 06/26/2028
TAGS: ICTY SR BK HR KAWC PREL
SUBJECT: ICTY: WITNESS TROUBLES AT THE SESELJ TRIAL

REF: THE HAGUE 0081


Classified By: Legal Counselor Heather A. Schildge, Reasons 1.4 (c) and (d).

C O N F I D E N T I A L THE HAGUE 000556


DEPARTMENT FOR S/WCI - WILLIAMSON/SHIN/LAVINE/VIBUL,
EUR/SCE - STINCHCOMB, L/CID - KJOHNSON, INR/GGI -
MARGULIES, USUN - WILLSON

E.O. 12958: DECL: 06/26/2028
TAGS: ICTY SR BK HR KAWC PREL
SUBJECT: ICTY: WITNESS TROUBLES AT THE SESELJ TRIAL

REF: THE HAGUE 0081


Classified By: Legal Counselor Heather A. Schildge, Reasons 1.4 (c) and (d).


1. (C) Summary. The Seselj trial at the International
Criminal Tribunal for the Former Yugoslavia (ICTY) is behind
schedule and witness issues threaten to slow it further.
Office of the Prosecutor (OTP) Senior Trial Attorney (STA)
Daryl Mundis claims to have evidence that Vojislav Seselj's
supporters, perhaps even his legal advisors, have threatened
OTP witnesses, including a US-based witness. Seselj claims
the OTP's witnesses freely chose to be Defense witnesses.
One of these witnesses, Lubisa Petkovic, was Seselj's deputy
during the war and awaits trial for contempt of court after
he failed to appear as a Trial Chamber witness. The Trial
Chamber will be hard pressed to investigate claims of witness
intimidation and still sustain the delicate and distasteful
balance that keeps the Seselj trial in motion. End Summary.


2. (U) Slow Progress. Allocating hours to the parties at
the start of the Seselj trial in November 2007, the Trial
Chamber estimated the case would take 18 months, and
projected that the OTP would conclude its case shortly after
the ICTY's 2008 summer break. In May, Presiding Judge
Antonetti observed that the OTP had consumed half of its
allotted time, but presented only around one third of its
witnesses. On June 19, he directed the OTP to wrap up by the
end of 2008, and made a vague reference to the trial
concluding in 2009. Frustrated by the Trial Chamber's
pressure on the OTP to cut time while the Chamber itself
rejected time-saving measures, Mundis replied that the OTP
would ask for substantially more time should the Trial
Chamber require live testimony from all remaining witnesses.
In response, Antonetti advised the OTP that the Trial Chamber
was considering issuing decisions regarding the time
remaining for the OTP to present its case, suggesting that it
may cut the OTP's time.


3. (C) OTP Claims Defense Pressuring Witnesses. Also on
June 19, Vojislav Seselj, who is self-representing, asked
that the Chamber prevent the OTP from calling witnesses who

have said they want to be Defense, and not OTP, witnesses.
Signaling support for Seselj's request, Antonetti commented
to STA Mundis that the OTP would no longer need the time
allotted for witnesses who would instead testify for Defense.
Mundis urged the Trial Chamber to delay making such a
decision, asserting that these witnesses were pressured into
agreeing to be Defense witnesses. Mundis then announced that
the Prosecution intended to file a motion with the Trial
Chamber regarding witness intimidation on 27 June and would
request that the Trial Chamber appoint counsel for Seselj.
In a private conversation with Emboff, Mundis said Seselj's
legal advisors are associated with a campaign of intimidation
against at least a dozen Serbia-based insider witnesses who
had agreed to testify for the OTP. He said that many of
these witnesses asked the OTP to subpoena their testimony, as
they feared openly supporting the OTP by voluntarily
appearing.


4. (C) Intimidation Evidence. OTP Deputy Chief of Trials
Division, Bob Reid, told Emboff that there is clear evidence
of attempted intimidation of three witnesses. One of these
witnesses, Isak Gasi, resides in the U.S. According to Reid,
Gasi reported that a Serbian friend in Belgrade, Mirko
Nisovic, was being pressured to convince Gasi to not testify
against Seselj. Nisovic told Gasi that Seselj's "associates"
threatened to destroy Nisovic's restaurant if Gasi testified.
Gasi forwarded a letter to the OTP that Nisovic supposedly
believed to have been drafted by Seselj's legal advisors for
Gasi to sign and return. The letter included a statement
that Gasi would only appear for Defense. According to Reid,
two other witnesses provided the OTP with copies of similar
letters, each claiming to be facing pressure to not testify.
According to Reid, Gasi, a former Olympic kayaker, is tough
and remains committed to testifying.


5. (SBU) Trial Chamber Twist. One former OTP witness,
Lubisa Petkovic, was Seselj's deputy in the Serbian Radical
Party during the period of the Seselj indictment. Upon
receiving Petkovic's notice in April that he wanted to be a
Defense rather than OTP witness, the Trial Chamber requested
via confidential subpoena that Petkovic appear instead as a
Chamber witness. After Petkovic failed to appear as ordered,
the Trial Chamber issued an order in lieu of an indictment
for contempt of court and a warrant for his arrest. The
Trial Chamber lifted confidentiality over these matters once
Serbia transferred Petkovic to the ICTY on May 28. Petkovic
entered a "Not Guilty" plea when he made his initial
appearance on 29 May. Petkovic asked for Serbian-speaking
legal representation, which Registry hoped to secure by the
end of June. The Trial Chamber will schedule the next
hearing once Petkovic has accepted legal representation.


6. (U) Seselj's Edge. Since January, Seselj has actively
participated in the trial process, and is almost respectful
of the Trial Chamber. However, Seselj shows little regard
for witnesses, regularly labeling testimony as a lie. At
least two witnesses addressed remarks to the Trial Chamber
regarding Seselj's harsh treatment of them. While the Bench
frequently advised Seselj against using such intimidating
tactics, it has not directly confronted Seselj. The Trial
Chamber instead reigned in some of Seselj's excesses by
modifying procedures that apply to both parties. The Trial
Chamber recently began deducting from Seselj's allotted
cross-examination time when Seselj disrupts the Prosecution's
presentation with matters he should raise during
cross-examination. This has cut Seselj's interruptions, but
not influenced his abrasive tone.


7. (C) Comments. Although witness intimidation has been
alleged in numerous ICTY trials, the Trial Chambers rarely
receive the concrete evidence that would allow them to
address the issue directly. Should the OTP present the Trial
Chamber with compelling evidence of witness intimidation in
the Seselj case, the Trial Chamber is likely to handle the
matter confidentially and seek to buy time, as it is poorly
positioned to confront the issue head on. Antonetti's
strategy has been to obtain Seselj's cooperation through
acceding to most of his demands and seeking to flatter him.
While this has enabled the trial to progress significantly,
there remains an unspoken threat that Seselj may stop
participating in the proceedings, as he did during his 2006
hunger strike. Given the impact of witness intimidation on
the judicial process, it is hard to see how the Trial Chamber
could avoid confronting Seselj should it be presented with
compelling evidence of such behavior. The consequences of
such a confrontation, however, are highly unpredictable.

Gallagher