Could Key Records Have Altered ICJ Ruling?

Questions are being asked about why judges did not request an unedited version of crucial documents.

By Merdijana Sadovic in Sarajevo (TU No 492, 9-Mar-07)

Analysts say the outcome of Bosnia’s genocide case against Serbia at the International Court of Justice was seriously affected by the failure to gain access to confidential documents from the trial of former Yugoslav leader Slobodan Milosevic.

The documents in question – records of meetings of the Supreme Defence Council, SDC, a top decision-making body in Yugoslavia at the time of the 1992-95 Bosnian conflict – were used extensively in the late Milosevic’s trial to support prosecutors’ allegations that Belgrade had helped Bosnian Serb forces.

Milosevic, who was standing trial for a range of crimes, including genocide, at the Hague-based International Criminal Tribunal for the former Yugoslavia, ICTY, died in March 2006 before the case ended.

Almost a year later, on February 26, the International Court of Justice, ICJ – also in The Hague - found that genocide did take place at Srebrenica in 1995, but absolved Serbia of responsibility for it. However, judges also ruled that Serbia failed to use its influence to prevent genocide, in breach of international law.

Testimonies of some witnesses at Milosevic’s trial – including former Yugoslav president Zoran Lilic – suggested the SDC records would have been very valuable for Bosnia’s case. Lilic said the SDC decided in 1993 to formalise support for officers of the Bosnian Serb Army, VRS by establishing a body within the Yugoslav army called Personnel Centre 30.

Elsewhere, some portions of the SDC records which have been made public suggest that Belgrade was paying the salaries of VRS officers as late as 1998, long after the war in Bosnia reached its end.

In June 2003, ICTY ordered Belgrade to hand over transcripts of Milosevic's meetings with senior associates in the Nineties after prosecutors said the documents went to the heart of their case.

Serbia finally complied, but under a deal between the tribunal and Belgrade, the bulk of these documents remained under seal at the court because Serbia cited “national security”.

During an IWPR investigation into this matter two years ago, a Serbian official said that a major concern was that this evidence might influence the ICJ case if made public.

The prosecution later challenged the judges’ ruling that the documents should remain confidential, but without much success.

Those SDC records that were made public were submitted as evidence by the Bosnian team at the ICJ. But dozens more documents believed to be of crucial importance remained sealed.

ICTY’s rules are very strict and no one outside the court can either request confidential documents or change their status from confidential to public, apart from the originator of the request for such protective measures.

Since Serbia was for obvious reasons unwilling to help the Bosnian team get hold of the evidence, the only way these records could have been used in Bosnia’s genocide case would have been if the ICJ judges had ordered Belgrade to disclose them. However, this never happened.

In the days after the ICJ handed out its historic verdict clearing Serbia of genocide charges due to insufficient evidence of a direct link between Belgrade and Bosnian Serb forces and its intent to commit genocide in Bosnia, many wondered whether a full, unedited version of the SDC’s meetings might have altered the ruling.

After all, judges in the Milosevic case who had access to these documents concluded in 2004 that there was apparently enough evidence to convict Milosevic on genocide charges in Bosnia – not only in Srebrenica in 1995, but in relation to events that began in 1992.

In its June 16, 2004 decision, the ICTY trial chamber said that “there is sufficient evidence that genocide was committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi”. The chamber confirmed that it “could be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise” which had “the aim and intention to destroy a part of the Bosnian Muslims as a group”.

Although legal experts say this decision does not carry the weight that a final judgment would have had in this case, they suggest that the evidence against Milosevic was obviously strong.

So why did ICJ judges not request an unedited version of the SDC documents?

Some observers blamed the Bosnian team for not pressing this issue enough, but the lawyers say it was not their fault. Bosnia’s legal representative Sakib Softic said his team asked the court to issue an order for the disclosure of SDC records, but their request was not granted.

“The ICJ said it already had enough evidence at its disposal to make a decision in this case,” Softic told IWPR.

However, not all ICJ judges thought this was the right decision. In a dissenting opinion attached to the text of the ICJ ruling, the court’s vice-president, Awn Shawkat al-Khasawneh, said, “Although the court was alerted by the applicant to the existence of redacted sections of documents of the Supreme Defence Council of the respondent, regrettably, the court failed to act although, under Article 49 of its statue, it has the power to do so.”

He goes on to say that “it is a reasonable expectation that those documents would have shed light on the central questions of intent and attributability”.

Now that Milosevic is dead and the ICJ case at an end, the question is whether the SDC records will ever see the light of the day. They could still be used in other trials at the Yugoslav tribunal, if prosecution or defence teams convince judges that they are really crucial for their case.

However, Belgrade is likely to want to keep the documents confidential, and the wider public is likely to be denied the unexpurgated version for a very long time, if not for ever.

Merdijana Sadovic is IWPR’s Hague project manager.